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Federal Register / Vol. 72, No.

39 / Wednesday, February 28, 2007 / Rules and Regulations 8931

subject to OMB approval under the as described in Executive Order 13175, §180.625 Orthosulfamuron; tolerances for
Paperwork Reduction Act (PRA), 44 entitled Consultation and Coordination residues.
U.S.C. 3501 et seq., or impose any with Indian Tribal Governments (65 FR (a) General. Tolerances are
enforceable duty or contain any 67249, November 6, 2000). Executive established for residues of
unfunded mandate as described under Order 13175, requires EPA to develop orthosulfamuron 1-(4,6-
Title II of the Unfunded Mandates an accountable process to ensure dimethoxypyrimidin-2-yl)-3-[2-
Reform Act of 1995 (UMRA) (Public ‘‘meaningful and timely input by tribal (dimethylcarbamoyl)- phenylsulfamoyl]
Law 104–4). Nor does it require any officials in the development of urea) per se in or on the following
special considerations under Executive regulatory policies that have tribal commodities:
Order 12898, entitled Federal Actions to implications.’’ ‘‘Policies that have tribal
Address Environmental Justice in implications’’ is defined in the Commodity Parts per million
Minority Populations and Low-Income Executive order to include regulations
Rice, grain ...................... 0.05
Populations (59 FR 7629, February 16, that have ‘‘substantial direct effects on
Rice, straw ...................... 0.05
1994); or OMB review or any Agency one or more Indian tribes, on the
action under Executive Order 13045, relationship between the Federal (b) Section 18 emergency exemptions.
entitled Protection of Children from Government and the Indian tribes, or on [Reserved]
Environmental Health Risks and Safety the distribution of power and (c) Tolerances with regional
Risks (62 FR 19885, April 23, 1997). responsibilities between the Federal registrations. [Reserved]
This action does not involve any Government and Indian tribes.’’ This (d) Indirect and inadvertant residues.
technical standards that would require rule will not have substantial direct [Reserved]
Agency consideration of voluntary effects on tribal governments, on the
relationship between the Federal [FR Doc. 07–898 Filed 2–23–07; 2:13 pm]
consensus standards pursuant to section
Government and Indian tribes, or on the BILLING CODE 6560–50–S
12(d) of the National Technology
Transfer and Advancement Act of 1995 distribution of power and
(NTTAA), Public Law 104–113, section responsibilities between the Federal
12(d) (15 U.S.C. 272 note). Since Government and Indian tribes, as DEPARTMENT OF THE INTERIOR
tolerances and exemptions that are specified in Executive Order 13175.
Thus, Executive Order 13175 does not Fish and Wildlife Service
established on the basis of a petition
under section 408(d) of FFDCA, such as apply to this rule.
50 CFR Part 21
the tolerance in this final rule, do not VII. Congressional Review Act
require the issuance of a proposed rule, RIN 1018–AI92
the requirements of the Regulatory The Congressional Review Act, 5
Flexibility Act (RFA) (5 U.S.C. 601 et U.S.C. 801 et seq., generally provides Migratory Bird Permits; Take of
seq.) do not apply. In addition, the that before a rule may take effect, the Migratory Birds by the Armed Forces
Agency has determined that this action agency promulgating the rule must AGENCY: Fish and Wildlife Service,
will not have a substantial direct effect submit a rule report to each House of Interior.
on States, on the relationship between the Congress and to the Comptroller
ACTION: Final rule.
the national government and the States, General of the United States. EPA will
or on the distribution of power and submit a report containing this rule and SUMMARY: The Migratory Bird Treaty Act
responsibilities among the various other required information to the U.S. (MBTA) prohibits the taking, killing, or
levels of government, as specified in Senate, the U.S. House of possessing of migratory birds unless
Executive Order 13132, entitled Representatives, and the Comptroller permitted by regulations promulgated
Federalism(64 FR 43255, August 10, General of the United States prior to by the Secretary of the Interior. While
1999). Executive Order 13132 requires publication of this final rule in the some courts have held that the MBTA
EPA to develop an accountable process Federal Register. This final rule is not does not apply to Federal agencies, in
to ensure ‘‘meaningful and timely input a ‘‘major rule’’ as defined by 5 U.S.C. July 2000, the United States Court of
by State and local officials in the 804(2). Appeals for the District of Columbia
development of regulatory policies that List of Subjects in 40 CFR Part 180 Circuit ruled that the prohibitions of the
have federalism implications.’’ ‘‘Policies MBTA do apply to Federal agencies,
that have federalism implications’’ is Environmental protection, and that a Federal agency’s taking and
defined in the Executive order to Administrative practice and procedure, killing of migratory birds without a
include regulations that have Agricultural commodities, Pesticides permit violated the MBTA. On March
‘‘substantial direct effects on the States, and pests, Reporting and recordkeeping 13, 2002, the United States District
on the relationship between the national requirements. Court for the District of Columbia ruled
government and the States, or on the Dated: February 16, 2007. that military training exercises of the
distribution of power and James Jones, Department of the Navy that
responsibilities among the various Director, Office of Pesticide Programs. incidentally take migratory birds
levels of government.’’ This final rule without a permit violate the MBTA.
directly regulates growers, food ■Therefore, 40 CFR chapter I is On December 2, 2002, the President
processors, food handlers, and food amended as follows: signed the 2003 National Defense
retailers, not States. This action does not Authorization Act (Authorization Act).
alter the relationships or distribution of PART 180—[AMENDED] Section 315 of the Authorization Act
power and responsibilities established ■ 1. The authority citation for part 180 provides that, not later than one year
by Congress in the preemption after its enactment, the Secretary of the
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continues to read as follows:


provisions of section 408(n)(4) of Interior (Secretary) shall exercise his/
FFDCA. For these same reasons, the Authority: 21 U.S.C. 321(q), 346a and 371. her authority under Section 704(a) of
Agency has determined that this rule ■ 2. Section 180.625 is added to read as the MBTA to prescribe regulations to
does not have any ‘‘tribal implications’’ follows: exempt the Armed Forces for the

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

incidental taking of migratory birds FOR FURTHER INFORMATION CONTACT: treaties provide for closed seasons for
during military readiness activities Robert Blohm, Chief, Division of hunting game birds. The list of the
authorized by the Secretary of Defense Migratory Bird Management, U.S. Fish species protected by the MBTA appears
or the Secretary of the military and Wildlife Service, telephone 703– in title 50, section 10.13, of the Code of
department concerned. The 358–1714. Federal Regulations (50 CFR 10.13).
Authorization Act further requires the SUPPLEMENTARY INFORMATION: Under the MBTA, it is unlawful ‘‘by
Secretary to promulgate such any means or in any manner, to pursue,
regulations with the concurrence of the Background hunt, take, capture, [or] kill’’ any
Secretary of Defense. The Secretary has Migratory birds are of great ecological migratory birds except as permitted by
delegated this task to the U.S. Fish and and economic value and are an regulation (16 U.S.C. 703). The
Wildlife Service (Service). important international resource. They Secretary is authorized and directed,
In passing the Authorization Act, are a key ecological component of the from time to time, having due regard to
Congress itself determined that allowing environment, and they also provide the zones of temperature and to the
incidental take of migratory birds as a immense enjoyment to millions of distribution, abundance, economic
result of military readiness activities is Americans who study, watch, feed, or value, breeding habits, and times and
consistent with the MBTA and the hunt them. Recognizing their lines of migratory flight of such birds to
treaties. With this language, Congress importance, the United States has been adopt suitable regulations permitting
clearly expressed its intention that the an active participant in the and governing the take of migratory
Armed Forces give appropriate internationally coordinated birds when determined to be compatible
consideration to the protection of management and conservation of with the terms of the treaties (16 U.S.C.
migratory birds when planning and migratory birds. The Migratory Bird 704). Furthermore, the regulations at 50
executing military readiness activities, Treaty Act (16 U.S.C. 703–712) (MBTA) CFR 21.11 prohibit the take of migratory
but not at the expense of diminishing is the primary legislation in the United birds except under a valid permit or as
States established to conserve migratory permitted in the implementing
the effectiveness of such activities. This
birds. The U.S. Fish and Wildlife regulations. The Service has defined
rule has been developed by the Service
Service (Service), is the Federal agency ‘‘take’’ in regulation to mean to ‘‘pursue,
in coordination and cooperation with
within the United States responsible for hunt, shoot, wound, kill, trap, capture,
the Department of Defense and the
administering and enforcing the statute. or collect’’ or to attempt these activities
Secretary of Defense concurs with the
The MBTA, originally passed in 1918, (50 CFR 10.12).
requirements herein. On July 18, 2000, the United States
implements the United States’
Current regulations authorize permits Court of Appeals for the District of
commitment to four bilateral treaties, or
for take of migratory birds for activities Columbia ruled in Humane Society v.
conventions, for the protection of a
such as scientific research, education, Glickman, 217 F.3d 882 (D.C. Cir. 2000),
shared migratory bird resource. The
and depredation control (50 CFR parts that Federal agencies are subject to the
original treaty upon which the MBTA
13, 21 and 22). However, these take prohibitions of the MBTA. The
was based was the Convention for the
regulations do not expressly address the United States had previously taken the
Protection of Migratory Birds, signed
issuance of permits for incidental take. position, and two other courts of
with Great Britain in 1916 on behalf of
As directed by Section 315 of the appeals held or suggested, that the
Canada for the protection ‘‘of the many
Authorization Act, this rule authorizes MBTA does not by its terms apply to
species of birds that traverse certain
such take, with limitations, that result Federal agencies. See Sierra Club v.
parts of the United States and Canada in
from military readiness activities of the Martin, 110 F.3d 1551, 1555 (11th Cir.
their annual migration.’’ The MBTA was
Armed Forces. If any of the Armed 1997); Newton County Wildlife Ass’n v.
subsequently amended after treaties
Forces determine that a proposed or an U.S. Forest Service, 113 F.3d 110, 115
were signed with Mexico (1936,
ongoing military readiness activity may (8th Cir. 1997). Subsequently, on
amended 1972, 1997), Japan (1972), and
result in a significant adverse effect on December 20, 2000, we issued Director’s
Russia (1976), and the amendment of
a population of a migratory bird species, Order 131 to clarify the Service’s
the treaty with Canada (1995).
then they must confer and cooperate While the terms of the treaties vary in position that, pursuant to Glickman,
with the Service to develop appropriate their particulars, each treaty and Federal agencies are subject to the
and reasonable conservation measures subsequent amendments impose permit requirements of the Service’s
to minimize or mitigate identified substantive obligations on the United existing regulations.
significant adverse effects. The States for the conservation of migratory Because the MBTA is a criminal
Secretary of the Interior, or his/her birds and their habitats. For example, statute and does not provide for citizen-
designee, will retain the power to the Canada treaty, as amended, includes suit enforcement, a private party who
withdraw or suspend the authorization the following conservation principles: violates the MBTA is subject to
for particular activities in appropriate • To manage migratory birds investigation by the Service and/or
circumstances. internationally; prosecution by the Department of
• To ensure a variety of sustainable Justice. However, the Administrative
DATES: This rule is effective March 30, Procedure Act (5 U.S.C. 551 et seq.)
2007. uses;
• To sustain healthy migratory bird (APA) allows private parties to file suit
ADDRESSES: The final rule and other populations for harvesting needs; to prevent a Federal agency from taking
related documents can be downloaded • To provide for, maintain, and ‘‘final agency action’’ that is ‘‘arbitrary,
at http://migratorybirds.fws.gov. The protect habitat necessary for the capricious, an abuse of discretion, or
complete file for this rule is available for conservation of migratory birds; and otherwise not in accordance with law’’
inspection, by appointment, during • To restore depleted populations of (5 U.S.C. 706(2)(A)). If the prohibitions
normal business hours at the Division of migratory birds. of the MBTA apply to Federal agencies,
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Migratory Bird Management, U.S. Fish The Canada and Mexico treaties private parties could seek to enjoin
and Wildlife Service, 4401 North Fairfax protect selected families of birds, while Federal actions that take migratory
Drive, Arlington, Virginia 22203, the Japan and Russia treaties protect birds, unless such take is authorized
telephone 703–358–1714. selected species of birds. All four pursuant to regulations developed in

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

accordance with 16 U.S.C. 704, even proper operation and suitability for ensure compliance with the treaties and
when such Federal actions are necessary combat use. It includes activities carried to protect a vital resource in accordance
to fulfill Government responsibilities out by contractors, when such with the Secretary’s obligations under
and even when the action poses no contractors are performing a military Section 704 of the MBTA as well as
threat to the species at issue. readiness activity in association with under Section 315 of the Authorization
In Center for Biological Diversity v. the Armed Forces, including training Act. This rule will continue to ensure
Pirie, a private party obtained an troops on the operation of a new conservation of migratory birds as the
injunction prohibiting live-fire military weapons system or testing the authorization it provides is dependent
training exercises of the Department of interoperability of new equipment with upon the Armed Forces conferring and
the Navy that had the effect of killing existing weapons systems. Military cooperating with the Service to develop
some migratory birds on the island of readiness does not include (a) the and implement conservation measures
Farallon de Medinilla (FDM) in the routine operation of installation to minimize or mitigate significant
Pacific Ocean. On March 13, 2002, the operating support functions, such as: adverse effects to migratory birds. This
United States District Court for the administrative offices; military rule has been developed by the Service
District of Columbia ruled that the Navy exchanges; commissaries; water in coordination and cooperation with
activities at FDM resulting in a take of treatment facilities; storage facilities; the Department of Defense, and the
migratory birds without a permit from schools; housing; motor pools; Secretary of Defense concurs with the
the Service violated the MBTA and the laundries; morale, welfare, and requirements herein.
APA (191 F. Supp. 2d. 161 and 201 F. recreation activities; shops; and mess
Supp. 2d 113). On May 1, 2002, after Executive Order 13186
halls, (b) the operation of industrial
hearing argument on the issue of activities, or (c) the construction or Migratory bird conservation relative
remedy, the Court entered a preliminary demolition of facilities listed above. to activities of the Department of
injunction ordering the Navy to apply Section 315 of the 2003 National Defense and the Coast Guard other than
for a permit from the Service to cover Defense Authorization Act (Pub. L. 107– military readiness activities are
the activities, and preliminarily 314, 116 Stat. 2458, Dec. 2, 2002, addressed separately in Memoranda of
enjoined the training activities for 30 reprinted in 16 U.S.C. 703 note) Understanding (MOUs) developed in
days. The United States Court of (hereinafter ‘‘Authorization Act’’) accordance with Executive Order 13186,
Appeals for the District of Columbia requires the Secretary of Defense, in Responsibilities of Federal Agencies to
Circuit stayed the District Court’s consultation with the Secretary, to Protect Migratory Birds, signed January
preliminary injunction pending appeal. identify ways to minimize, mitigate, and 10, 2001. The MOU with the
The preliminary injunction, and monitor take of migratory birds during Department of Defense was published in
associated stay, expired on May 31, military readiness activities and the Federal Register August 30, 2006
2002. A permanent injunction was requires the Secretary to prescribe, with (Volume 71, Number 168). Upon
issued by the District Court on June 3, the concurrence of the Secretary of completion of the MOUs with
2002. The Circuit Court also stayed this Defense, a regulation that exempts additional Federal agencies, and in
injunction pending appeal on June 5, military readiness activities from the keeping with the intent of the Executive
2002. On December 2, 2002, the MBTA’s prohibitions against take of Order for Federal agencies to promote
President signed the Authorization Act migratory birds. With the passage of the the conservation of migratory bird
creating an interim period during which Authorization Act, Congress determined populations, the Service may issue
the prohibitions on incidental take of that such regulations are consistent with incidental take authorization to address
migratory birds would not apply to the MBTA and the underlying treaties specific actions identified in the MOUs.
military readiness activities. During the by requiring the Secretary to promulgate
Responses to Public Comment
interim period, Congress also directed such regulations. Furthermore, Congress
the Secretary of the Interior to develop clearly expressed its intention that the On June 2, 2004, we published in the
regulations that exempt the Armed Armed Forces give appropriate Federal Register (69 FR 31074) a
Forces from incidental take during consideration to the protection of proposed rule to authorize the take of
authorized military readiness activities. migratory birds when planning and migratory birds, with limitations, that
The Department of Defense must concur executing military readiness activities, result from Department of Defense
with the regulations before they take but not at the expense of diminishing military readiness activities. We
effect. The Circuit Court subsequently the effectiveness of such activities. Any solicited public comment on the
dismissed the Pirie case as moot. In light diminishment in effectiveness could proposed rule for 60 days ending on
of the Glickman and Pirie decisions, the impair the ability of the Armed Forces August 2, 2004.
authorization that this rule provides is to fulfill their national security mission. By this date, we received 573
essential to preserving the Service’s role Diminishment could occur when comments in response to the proposed
in determining what military readiness military training or testing is modified rule; 24 were from identified
activities, if any, create an unacceptable in ways that do not allow the full range organizations or agencies. The following
risk to migratory bird resources and of training methods to be explored. text discusses the substantive comments
therefore must be modified or curtailed. This rule authorizes the Armed Forces received and provides our response to
The Armed Forces are responsible for to take migratory birds incidental to those comments. Additionally, it
protecting the United States from military readiness activities, subject to provides an explanation of significant
external threats. To provide for national certain limitations and subject to changes from the proposed rule. We do
security, they engage in military withdrawal of the authorization to not specifically address the comments
readiness activities. ‘‘Military readiness ensure consistency with the provisions that simply opposed the rule unless
activity’’ is defined in the Authorization of the migratory bird treaties. The they included recommendations for
Act to include all training and authorization provided by this rule is revisions. Comments are organized by
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operations of the Armed Forces that necessary to ensure that the work of the topic.
relate to combat, and the adequate and Armed Forces in meeting their statutory To more closely track the language in
realistic testing of military equipment, responsibilities can go forward. This the Authorization Act and to clarify that
vehicles, weapons, and sensors for rule is also appropriate and necessary to the rule applies to the incidental taking

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

of a migratory bird by a member of the and avoiding areas where migratory may be killed even if all reasonable
Armed Forces during a military birds nest, breed, rest, and feed. conservation measures are
readiness activity, we have replaced the Service Response: Military lands often implemented. With the passage of the
‘‘Department of Defense’’ with ‘‘Armed support a diversity of habitats and their Authorization Act, Congress directed
Forces,’’ where applicable. associated species, including migratory the Secretary to authorize incidental
birds; thus it would be difficult for the take by the Armed Forces. Thus, they
Violation of the Migratory Bird Treaty Armed Forces to completely avoid areas will be allowed to take migratory birds
Act and the Four Migratory Bird inhabited by birds or other wildlife as a result of military readiness
Treaties species. When determining the location activities, consistent with this rule. This
Comment: The statement that the rule for a new installation, such as an rule, however, will continue to ensure
allows take only in ‘‘narrow instances’’ airfield, the applicable Armed Force conservation of migratory birds as it
of military readiness activities goes must prepare environmental requires the Armed Forces to confer and
against the spirit and letter of the documentation in accordance with the cooperate with the Service to develop
MBTA, which forbids the take of National Environmental Policy Act (42 and implement conservation measures
migratory birds and thus abrogates the U.S.C. 4321 et seq.) (NEPA) that gives to minimize or mitigate adverse effects
MBTA. due consideration to the impacts of the to migratory birds when scientific
Service Response: The MBTA proposal on the environment, including evidence indicates an action may result
regulates, rather than absolutely forbids, migratory birds. With respect to wildlife in a significant adverse effect on a
take of migratory birds. The Secretary is refuges, Congress in the 2000 population of a migratory bird species.
authorized and directed, from time to amendments to the National Wildlife As stated in the Principles and
time, having due regard to the zones of Refuge System Administration Act Standards section of this rule, the
temperature and to the distribution, noted specifically that the provisions of Armed Forces will use the best
abundance, economic value, breeding the Act relating to determinations of the scientific data available to assess
habits, and times and lines of migratory compatibility of a use would not apply through the NEPA process, or other
flight of such birds to adopt suitable to overflights above a refuge (Pub. L. environmental requirements, the
regulations permitting and governing 106–580; December 29, 2000). expected impact of proposed or ongoing
the take of migratory birds when Nevertheless, as noted in this rule, the military readiness activities on
determined to be compatible with the Armed Forces have made significant migratory bird species likely to occur in
terms of the treaties (16 U.S.C. 704). In investments in acquiring data on the the action areas.
distribution of bird populations and Comment: The Department of Defense
the Authorization Act, Congress
identification of migration routes, as should not have the sole authority/
directed the Secretary to utilize his/her
well as the use of military lands for responsibility to determine whether the
authority to permit incidental take for
breeding, stopover sites, and over- survival of the species is threatened,
military readiness activities.
wintering areas, to protect and conserve and only then initiate consultation with
Furthermore, Congress itself by passing
these areas. The Armed Forces actively the Service.
the Authorization Act determined that Service Response: We assume that,
utilize radar ornithology to plan new
allowing incidental take of migratory despite the commenter’s use of the term
construction and testing and training
birds as a result of military readiness ‘‘consultation’’, this is a reference to the
operations in areas and times of least
activities is consistent with the MBTA requirement under § 21.15(a)(1) to
constraints. The Armed Forces also have
and the treaties. Thus, this rule does not ‘‘confer and cooperate,’’ and not to the
a strong interest in avoiding bird/aircraft
abrogate the MBTA. requirement of ‘‘consultation’’ under
conflicts and use this type of
Comment: Citing broad take information to assist range planners in section 7 of the Endangered Species Act
authorization language in the current selecting training times when bird (ESA), 16 U.S.C. 1536. Section
text of the treaty with Canada, concern activity is low. 21.15(a)(1) does condition the
was expressed regarding the analysis in In accordance with the Sikes Act requirement to ‘‘confer and cooperate’’
the proposed rule that the treaty with (included in Pub. L. 105–85), the on a determination by the Armed Forces
Canada has a narrower focus than the Department of Defense must provide for that a military readiness activity may
treaties with Japan and Russia. the conservation and rehabilitation of result in a significant adverse effect on
Service Response: We agree with the natural resources on military a population of a migratory birds
commenter that the Canada treaty, as installations. Thus, potential conflicts species. However, we expect that the
amended by the 1995 Protocol, now with natural resources, including Armed Forces will notify the Service of
includes broad exception language migratory birds, should be addressed in any activity that even arguably triggers
similar to that in the Japan and Russia Integrated Resource Management Plans this requirement. In addition, putting
treaties. We have expanded upon and (INRMP), where applicable. Although aside the requirements of this
added additional clarification in the the Sikes Act does not apply to the regulation, the Armed Forces would, as
section ‘‘Is the rule consistent with the Coast Guard, they are also starting to a matter of course share such
MBTA?’’ discussing compatibility of encourage applicable bases to develop information in a number of
this rule with the MBTA and the four INRMPs. circumstances.
treaties. Comment: Provision should be First, NEPA, and its regulations at 40
included that the Department of Defense CFR 1500–1508, require that Federal
Authorization of Take Under § 21.15(a)
cannot ignore scientific evidence and agencies prepare environmental impact
Comment: The Department of Defense proceed on a course of action where statements for ‘‘major Federal actions
should avoid take of migratory birds by take is inevitable. significantly affecting the quality of the
avoiding areas inhabited by migratory Service Response: None of the four human environment.’’ These statements
birds including restricting construction treaties strictly prohibit the taking of must include a detailed analysis of the
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and active use of airfields in the vicinity migratory birds without exception. impacts of an agency’s proposed action
of wildlife refuges, prohibiting military Furthermore, the Service acknowledges and any reasonable alternatives to that
operations over wildlife refuges or that regardless of the entity proposal. NEPA also requires the
sensitive migratory bird habitat areas, implementing an activity, some birds responsible Federal official to ‘‘consult

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

with and obtain comments of any adverse effect’’ have also been modified Service Response: We agree that
Federal agency which has jurisdiction accordingly in this rule. mitigation can be very complex both
by law or special expertise with respect Comment: The provision that the rule from the perspective of replicating all
to any environmental impact involved.’’ must be promulgated with the the ecosystem components that a
Second, the Sikes Act (16 U.S.C. 670a- concurrence of the Secretary of Defense species needs to successfully survive
670o), as amended in 1997, requires the requires the regulator to get permission and reproduce regardless of whether
development of INRMPs by the of the regulated agency. mitigation is ex-situ or in-situ.
Department of Defense that reflect the Service Response: The 2003 Defense The Service’s Mitigation Policy (Fish
mutual agreement of the Department of Authorization Act required that the and Wildlife Service Manual, 501 FW 2)
Defense, the Service, and the regulation be developed with the is designed to assist the Service in the
appropriate State wildlife agency. The concurrence of the Secretary of Defense. development of consistent and effective
Sikes Act has provided the Service, as However, as indicated in § 21.15(b), we recommendations to protect and
well as the public, with an opportunity have the authority to withdraw conserve valuable fish and wildlife
to review natural resources management authorization if it is determined that a resources to help ensure that mitigation
on military lands, including any major proposed military readiness activity be commensurate with the extent of the
conflicts with migratory birds or their may be in violation of any of the impact.
habitat. NEPA documentation is also migratory bird treaties or otherwise is In addition, as indicated in this rule,
completed on new or revised INRMPs. not being implemented in accordance the Armed Forces will confer and
Department of Defense policy requires with this regulation. cooperate with the Service to develop
installations to review INRMPs annually Comment: Encourage more emphasis
and implement conservation measures
in cooperation with the Service and on upfront planning and evaluation of
when an ongoing or proposed activity
State resource agencies. Annual reviews minimum-impact alternatives to foster
may have a significant adverse effect on
facilitate adaptive management by more opportunities to avoid or mitigate
a population of migratory bird species.
providing an opportunity for the parties impacts.
Service Response: As stated in this The public, and the Service, also have
to review the goals and objectives of the the opportunity to review and comment
plans and to evaluate any new scientific rule, the Department of Defense
currently incorporates a variety of on proposed military readiness
information that indicates the potential activities in accordance with NEPA.
for adverse impacts on population of a conservation measures into their INRMP
documents to address migratory bird Comment: Section 21.15(a) of the
migratory bird species from ongoing (or
conservation. Additional measures will proposed regulation must be revised to
new) military readiness activities.
be developed in the future with all the provide a system of oversight by the
Third, if the military readiness
activity may affect a species listed under Armed Forces in coordination with the Service both in determining whether
the ESA, the Armed Forces would Service and implemented where Department of Defense military
communicate with the Service to necessary to avoid, minimize, or readiness activities would likely
determine whether formal consultation mitigate significant adverse effects on adversely impact a migratory bird
is necessary under section 7 of the ESA. migratory bird populations. This rule population and in setting a timeline for
If, as a result these formal processes also indicates the Armed Forces shall the implementation of conservation
or by any other mechanism the Service engage in early planning and scoping measures.
obtains information which raise and involve agencies with special Service Response: As previously
concerns about the impacts of military expertise in the matters related to the indicated, the Service and the public
readiness on migratory bird potential impacts of a proposed action. have the opportunity to review and
populations, the Service can request Comment: The proposed rule grants comment on proposed military
additional information from the Armed the Department of Defense greater readiness activities in accordance with
Services. Under section 21.15(b)(2)(iii), authority to take and kill migratory NEPA or other environmental review.
failure to provide such information can birds than authorized in the Defense Thus, we will be provided an
form the basis for withdrawal of the Authorization Act, which is the only opportunity to evaluate whether a
authorization to take migratory birds. In statutory authority for the proposed rule proposed activity may have an adverse
any case, based on this information, the and requires that the Department of effect on migratory bird populations.
Service can, under appropriate Defense minimize and mitigate impacts Comment: Pursuant to authority
circumstances, suspend or withdraw the to migratory birds. granted by 10 U.S.C. 101 and 14 U.S.C.
authorization even if the Armed Forces Service Response: We do not agree 1, the U.S. Coast Guard is a branch of
do not themselves determine that a that the rule provides greater authority the armed forces of the USA at all times.
military readiness activity may result in to take birds than authorized in the Under this authority, the Coast Guard
a significant adverse effect on a Defense Authorization Act. What this engages in military readiness activities.
population of a migratory bird species. rule does is provide clarity regarding the Furthermore, under the definition of
Comment: The threshold for requiring processes the Armed Forces are required ‘‘Secretary of Defense,’’ the Department
the Department of Defense to confer to initiate to minimize and mitigate of Homeland Security is included with
with the Service when a ‘‘significant adverse impacts of authorized military respect to military readiness activities of
adverse effect on the sustainability of a readiness activities on migratory birds the U.S. Coast Guard. The rule should
population of migratory bird species of while ensuring compliance with the be revised accordingly to reflect this.
concern’’ is too high. This could allow migratory bird treaties and meeting the Service Response: Section 315 of the
significant damage to resources that Secretary’s obligations under Section Authorization Act provides for the
could be avoided with criteria that are 704 of the MBTA. Secretary ‘‘to prescribe regulations to
more stringent. Comment: The rule should require exempt the Armed Forces for the
Service Response: We agree. We have mitigation options be formally assessed incidental taking of migratory birds
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modified the threshold to ‘‘significant and evaluated prior to undertaking the during military readiness activities
adverse effect on a population of activity and that mitigation be authorized by the Secretary of Defense
migratory bird species.’’ The definitions commensurate with the extent of the or the Secretary of the military
of ‘‘population’’ and ‘‘significant impact. department concerned.’’ We agree that

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‘‘Armed Forces’’ includes the Coast activities are likely to result in activity likely would not be compatible
Guard. significant adverse effects. with one or more of the treaties or is
Comment: In order for potential Service Response: We have revised likely to result in a significant adverse
impacts of the implementation of this § 21.15(a) to clarify that this effect on a migratory bird population.
rule to be effectively analyzed, the rule responsibility initially lies with the
should not be categorically excluded. A action proponent, i.e., the Armed Withdrawal of Take Authorization
full NEPA analysis should be conducted Forces. Just as the Armed Forces make § 21.15(b)
for the rule. the initial determination that Comment: The Department of Defense
Service Response: Because of the consultation is required under similar is given too much decision power in the
broad spectrum of activities, activity statutes, such as the Endangered Species rule. Concern was expressed that the
locations, habitat types, and migratory Act (16 U.S.C. 1531 et seq.) (ESA) or the final decision regarding whether a
birds potentially present that may be National Historic Preservation Act (16 military readiness activity is authorized
affected by this rule, it is not foreseeable U.S.C. 470), the action proponent will or not is made by political appointees
or reasonable to anticipate all the consider the likely effects of its rather than unbiased career employees.
potential impacts in a meaningful proposed action and whether such Service Response: Our political
manner of military readiness activities effects require that it confer with the system is based upon a structure
conducted by the Armed Forces on the Service to develop and implement whereby policy decisions are made by
affected environment; thus it is appropriate conservation measures to political appointees rather than career
premature to examine potential impacts minimize or mitigate potential employees. To address what may be
of the rule in accordance with NEPA. significant adverse effects. Where perceived as too much power by the
We have determined that any significant adverse impacts are likely, Armed Forces, it is the Secretary of the
environmental analysis of the rule existing requirements under NEPA for Interior who has, and retains, the final
would be too broad, speculative, and federal agencies to prepare determination regarding whether an
conjectural. environmental documentation will activity is authorized under the MBTA,
Part 516 Departmental Manual 2.3 A ensure that both the public and the not the Secretary of Defense.
(National Environmental Policy Act Part Service have an opportunity to review a Comment: The rule should require
1508.4) allows an agency (Bureau) in the proposed action and the Armed Force’s sufficient monitoring to detect
Department of Interior to determine if determination with respect to migratory significant impacts and provide for
an action is categorically excluded from birds. diligent oversight by the Department of
NEPA. We have made the determination The Service and State wildlife the Interior to head off problems well
that the rule is categorically excluded in agencies (and the general public if plan before jeopardy is near and withdrawal
accordance with 516 Departmental revisions are proposed) also have an of authorization is suspended or
Manual 2, Appendix 1.10. This opportunity to review the Department of proposed to be withdrawn.
determination does not diminish the Defense’s management of installation Service Response: We concur that
responsibility of the Armed Forces to natural resources, including the impacts monitoring can play a key role in
comply with NEPA. Whenever the of land use on such resources, during providing valuable data needed to
Armed Forces propose to undertake new the quintennial review of INRMPs for evaluate potential impacts of activities,
military readiness activities or to adopt Department of Defense lands. inform conservation decisions, and
a new, or materially revised, INRMP Consultation under the Endangered evaluate effectiveness of conservation
where migratory bird species may be Species Act offers yet another measures. For monitoring to be relevant,
affected, the Armed Forces invite the opportunity for the Service to provide it should focus on specific objectives,
Service to comment as an agency with input on the potential effects of a desired outcomes, key hypotheses, and
‘‘jurisdiction by law or special proposed military readiness activity on conservation measures. As stated in
expertise’’ upon their NEPA analysis. In federally listed migratory birds. § 21.15(b)(2)(ii) of the rule, in instances
addition, if the potential for significant Comment: The document uses both where it is appropriate, the Armed
effects on migratory birds makes it the terms ‘‘may’’ affect migratory birds Forces are required to ‘‘conduct
appropriate, the Armed Forces may and ‘‘likely’’ to affect migratory birds. mutually agreed upon monitoring to
invite the Service to participate as a ‘‘May’’ should be used to be consistent determine the effects of military
cooperating agency in the preparation of with the NEPA threshold for impacts on readiness activity on migratory bird
their NEPA analysis. Moreover, the environment. species and/or the efficacy of the
authorization under this rule requires Service Response: The Service has conservation measures implemented by
that if a proposed military readiness intentionally established different the Armed Forces.’’ This rule also states
activity may result in a significant standards for when the Armed Forces that the Armed Forces will consult with
adverse impact on a population of are required to confer with the Service the Service to identify techniques and
migratory bird species, the Armed and for when we may propose protocols to monitor impacts of military
Forces must confer and cooperate with withdrawal of authorization. We have readiness activities. We have also added
the Service to develop and implement established a broad standard for additional text clarifying the monitoring
appropriate measures to minimize or triggering when the Armed Forces must requirements of the Armed Forces.
mitigate these effects. The notify the Service of potential adverse Comment: The procedure for
environmental consequences of the effects on migratory birds. We agree that withdrawal of the authority is so
proposed military readiness activity, as requiring the Armed Forces to confer cumbersome and subject to so many
well as the potential of any such with the Service when applicable exclusions as to make the withdrawal
measures to reduce the adverse impacts activities ‘‘may’’ result in a significant procedure non-functional.
of the proposed activity, would be adverse effect is consistent with the Service Response: We have clarified
covered in NEPA documentation analysis threshold utilized in NEPA. the procedures for when the Secretary
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prepared for the proposed action. The Secretary determined that the more may propose withdrawing authorization
Comment: Section 21.15(a) of the restrictive threshold of suspending or in § 21.15(b)(2), (4) and (5).
proposed regulation is unclear as to who withdrawing authorization was Comment: The statutory language of
is to determine that ongoing or proposed warranted when a military readiness the Defense Authorization Act says

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nothing about requiring input from the by the Secretary of the Interior with the exchanges; commissaries; water
State Department prior to suspending concurrence of the Secretary of Defense. treatment facilities; storage facilities;
authorization. Thus, the rule needlessly However, the Defense Authorization Act schools; housing; motor pools;
goes beyond its statutory authority. does not restrict or limit our authority laundries; morale, welfare, and
Service response: In accordance with in 16 U.S.C. 704 and 712 relative to recreation activities; shops; and mess
the MBTA (16 U.S.C. 704), the Secretary administering and enforcing the MBTA halls, (b) operation of industrial
of the Interior has the authority to and complying with the four migratory activities, or (c) construction or
‘‘determine when, and to what extent, if bird treaties. demolition of facilities listed above.
at all, and by what means, it is Acquisition of lands by the Armed
compatible with the terms of the Definitions § 21.3
Forces is not covered by this
conventions to allow hunting, taking, Comment: Incidental take is not authorization as the acquisition itself
capture, killing * * * and to adopt defined in the rule or the Defense does not take birds even when the land
suitable regulations permitting and Authorization Act. Concern was is being acquired for implementing
governing the same.’’ The Defense expressed that the Department of future military readiness activities. In
Authorization Act does not limit that Defense being authorized to take accordance with NEPA, environmental
authority. Requiring the input of the migratory birds incidental to military analysis of any major Federal agency
State Department is within the readiness activities without action, which may include land
standards of § 704. ‘‘incidental’’ being defined will result in acquisition and future proposed
Comment: The provision that the the Department of Defense reading this activities on these lands, must be
Secretary must seek the view of the as the ability to actively kill migratory addressed prior to the action occurring.
Department of Defense prior to birds and destroy their habitat in Likewise, construction of facilities in
suspending authorization due to a anticipation of the potential for such sensitive migratory bird habitat would
violation with any of the treaties it problems. be addressed through NEPA.
affects permits the Department of Service Response: Current regulations
authorize permits for take of migratory Comment: The rule covers all military
Defense to itself determine its
birds for activities such as scientific branches of service and includes
compliance with the migratory bird
research, education, and depredation contractors and agents. These should be
treaties. The statutory language of the
control (50 CFR parts 13, 21 and 22). clearly delineated in order to minimize
Defense Authorization Act did not
However, these regulations do not the number of exempt entities.
address this in any way.
Service Response: Section 21.15(b)(1) expressly address the issuance of Service Response: The rule applies to
of this regulation provides that the permits for incidental take. ‘‘Incidental contractors only when such contractors
Secretary retains the discretion to make take of migratory birds’’ is not defined are performing a military readiness
the ultimate determination that under the MBTA or in any subsequent activity in association with the Armed
incidental take of migratory birds during regulation, and the Service does not Forces—i.e., the contractors are
a specific military readiness activity anticipate having a regulatory definition performing a federal function. For
would be incompatible with the treaties. for ‘‘incidental take’’ in the short term. example, a contractor training troops on
Although the Defense Authorization Act Neither the MBTA, the Defense the operation of a new weapons system
required the Secretary to promulgate a Authorization Act, nor this rule or testing its interoperability with
regulation, it did not mandate the authorize the take of migratory birds existing weapons systems would be
specific text or all of the conditions in simply in anticipation of the potential covered. The regulation does not cover
this regulation. This regulation is for future problems, i.e., removing the routine contractor testing performed at
consistent with the Defense potential source of problems before any an industrial activity that is privately
Authorization Act as well as with 16 conflicts may arise with military owned and operated.
U.S.C. 704. Moreover, seeking the views readiness activities. Comment: The Defense Authorization
of the Armed Forces is appropriate Comment: Blanket exemption for any Act does not limit applicability of
given the possible impacts that and all military readiness activities minimization and mitigation measures
suspension of the take authorization should not be authorized. In particular, to just ‘‘species of concern’’ but applies
could have on national security. those activities that involve acquisition to all ‘‘affected species of migratory
Similarly, consulting with the State of new land and construction of birds.’’ In addition, concern was
Department on issues of treaty facilities in sensitive migratory bird expressed that this level of threshold
interpretation is appropriate because of habitat areas should not be authorized. could result in avoidable impacts to
the State Department’s expertise and Authorization to take birds should only species that are not included in the
authority in this area as well as its include those types of activities that are ‘‘species of concern lists’’ but are
responsibility for maintaining the too time or mission-sensitive for nevertheless valuable public resources.
relationship of the United States with its thorough evaluation, and where Service Response: We agree that the
treaty partners. incidental take is unavoidable. Defense Authorization Act is not
Comment: The Secretary should not Service Response: As defined in the specifically limited to species of
have unilateral power to suspend or 2003 Defense Authorization Act, concern, nor did we envision that the
withdraw take authorization as the military readiness activities include all rule prevents the Armed Forces from
Defense Authorization Act states the training and operations of the Armed addressing adverse impacts on all
Secretary must exercise authority with Forces that relate to combat, and the affected species of migratory birds
the concurrence of the Secretary of adequate and realistic testing of military through the NEPA process, including
Defense. equipment, vehicles, weapons, and those that are locally endemic or
Service Response: In accordance with sensors for proper operation and otherwise have limited distribution
§ 315(d)(1) and (2) of the Authorization suitability for combat use. Military within a State. The rule has been
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Act, the regulation ‘‘to exempt the readiness does not include (a) routine modified by requiring the Armed Forces
Armed Forces for the incidental take of operation of installation operating to confer with the Service when they
migratory birds during military support functions, such as: determine an action may result in a
readiness activities’’ shall be developed administrative offices; military significant adverse effect on the

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population of any migratory bird Comment: ‘‘Conservation measures’’ activities pertains to the period of
species. is defined to include monitoring when interim authority. The standard for
Comment: Use of population status at it has the potential to produce data authorization of take is established by
the Bird Conservation Region (BCR) relevant to substantiating impacts, the Secretary’s authority under § 704 of
level as a criterion for action could validating effectiveness of mitigation, or the MBTA, whereby in exercising this
reduce consideration of locally providing other pertinent information. authority he/she may prescribe
important bird resources, concentrations However, in the absence of a monitoring regulations that exempt the Armed
of birds and special habitats, and requirement, this provision is Forces for the incidental taking of
populations that do not coincide closely unworkable. migratory birds during military
with BCRs. Service Response: Monitoring is readiness activities. As indicated in the
Service Response: We have revised required in § 21.15(b)(ii) of the rule. rule, the Secretary established
the definition of population so that it is This section indicates that the thresholds for granting authority to
not based upon species distribution or Department of Defense’s failure ‘‘to incidentally take migratory birds. For
occurrence within a Bird Conservation conduct mutually agreed upon those military readiness activities that
Region and thus eliminates the concerns monitoring to determine the effects of would not have a significant adverse
expressed above. As used in the rule, a military readiness activity on migratory effect on migratory bird species
population is defined as ‘‘a group of bird species and/or the efficacy of the populations take is authorized without
distinct, coexisting (conspecific) conservation measures implemented by conferring with the Service, subject to
individuals of a single species, whose the Department of Defense’’ is potential the withdrawal provision of
breeding site fidelity, migration routes, cause for the Secretary to propose § 21.15(b)(1). If a proposed or ongoing
and wintering areas are temporally and withdrawing authorization. However, as activity may result in a significant
spatially stable, sufficiently distinct indicated in the response below, adverse effect, the Armed Forces must
geographically (at some time of the reference to monitoring has been confer and cooperate with the Service.
year), and adequately described so that removed from the definition of Take authorization would be suspended
the population can be effectively conservation measures. or withdrawn only when a military
Comment: Monitoring should not be readiness activity likely would not be
monitored to discern changes in its
considered a conservation measure, compatible with one or more of the
status.’’
rather it should be conducted separately treaties or is likely to result in a
What constitutes a population for the
and apart from any necessary and significant adverse effect on a migratory
purposes of determining potential
reasonable mitigation actions. bird population.
effects of military readiness activities Service Response: Although
will be scientifically based. A Comment: Conservation measures that
monitoring can play a key role in the are project designs or mitigation
population could be defined as one that continued growth of bird conservation
occurs spatially across a geographically activities should be changed from those
by providing the information needed to that are ‘‘reasonable and feasible’’ to
broad area, such as the Western Atlantic inform conservation decisions and
red knot population that migrates along ‘‘reasonable and necessary.’’ This will
evaluate their effectiveness, we have result in a conservation measure that is
the Atlantic seaboard, to a more removed it from the definition of
geographically limited species, such as appropriate to its purpose and essential
conservation measures. to conservation.
breeding population of Bicknell’s thrush Comment: The threshold of
whose breeding range is limited to Service Response: This revision has
‘‘significant adverse effect on the been made to the definition of
mountain tops in the northeastern U.S. sustainability of a population’’ is too
and southeastern Canada. When conservation measures.
high. Comment: ‘‘Conservation measures’’
requested, the Service will provide Service Response: The threshold for fails to place any restrictions or
technical assistance to the Armed when the Armed Forces will be required requirements on the amount of time that
Forces in identifying specific to confer with the Service and the Department of Defense would be
populations of migratory bird species implement appropriate conservation given to apply the mitigation actions.
that may be affected by a military measures has been modified to when a The phrase ‘‘over time’’ implicitly
readiness activity. ‘‘significant adverse effect on a grants the Department of Defense the
Comment: The definition of population of migratory bird species’’ ability to ignore the need for immediate
conservation measure does not may result from an ongoing or proposed action to counter adverse impacts.
adequately recognize international military readiness activity. The Service Response: ‘‘Over time’’ was
treaty obligations and the right of the definition of significant adverse effect deleted from the definition.
Secretary of the Interior to withdraw has also been accordingly revised in the
take authorization should the treaties be rule. Supplementary Information Section
violated. In the definitions, after the Comment: The rule has a different Many comments were received on the
words ‘‘while allowing for completion standard than what was indicated by Supplementary section of the proposed
of the action in a timely manner,’’ insert Congress in the Defense Authorization rule which did not pertain to any
‘‘if such action would be consistent with Act. The Act indicates measures are to recommended revisions to § 21.15.
the international treaties underlying the be identified that minimize and mitigate These were taken into consideration in
MBTA.’’ ‘‘any adverse impacts’’ not just the final rule.
Service Response: If conservation ‘‘significant adverse effects.’’ The Comment: Ambiguous terms such as
measures implemented by the Armed Service is inserting thresholds of both ‘‘should,’’ ‘‘encourage,’’ ‘‘anticipates,’’
Forces in accordance with the rule are likelihood and significance that are not etc., relative to Department of Defense
not sufficient to render the action any way implied by the statute. activities contributing towards the
compliant with the treaties, the Service Response: As indicated in conservation of migratory birds should
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Secretary will suspend the Section 315(b) of the Authorization Act, be replaced with stronger terms such as
authorization. Failure to implement the identification of measures to ‘‘require.’’
conservation measures is not the sole minimize and mitigate any adverse Service Response: The
criterion for proposing withdrawal. impacts of authorized military readiness SUPPLEMENTARY INFORMATION text has no

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regulatory force and thus use of stronger offer opportunities to partner with without commitment of more resources
terms has no regulatory weight. States and to share information and to gather new bird data, conduct
However, this comment was given due advice. additional efforts to monitor impacts, or
consideration and several revisions Comment: If the Service must rely on spend more money.
were made to strengthen the measures INRMPs for monitoring and mitigation Service Response: Although the rule
the Armed Forces are currently of bird take, we recommend a requires the Armed Forces to conduct
undertaking to address migratory bird requirement to complete, revise, and mutually agreed upon monitoring to
conservation. These terms are not update plans to address bird monitoring determine the effects of a military
applicable in the actual rule, and and assessment of military readiness readiness activity on migratory bird
therefore, no revisions were made impacts and that migratory bird species and the efficacy of the
relative to the authorization in this conservation activities receive adequate conservation measures implemented by
regard. funding. the Armed Forces, we cannot require
Comment: Integrated Natural Service Response: The Sikes Act and the Armed Forces to provide additional
Resources Management Plans (INRMPs) Department of Defense guidance funding or resources towards
as informal mechanisms may not provide mechanisms to address monitoring. However, we do agree that
provide prompt and diligent efforts to emerging needs related to bird monitoring is an important component
minimize permitted take of birds. State monitoring and assessment of military of activities the Armed Forces undertake
wildlife agencies encourage more readiness impacts. The Sikes Act to address migratory bird conservation.
rigorous and thorough planning requires INRMPs to be reviewed, and We have expanded the monitoring
requirements and offer their revised as necessary, as to operation and discussion under ‘‘Rule Authorization’’
considerable expertise and assistance. effect by the parties (i.e., the Service and below.
Service Response: The Sikes Act State resource agencies) on a regular Comment: Concern was expressed
Improvement Act of 1997 (included in basis, but not less often than every 5
that the proposed broad exemption will
Pub. L. 105–85) requires the years. In October 2004, the Department
be perceived as precluding the need for
development and implementation of of Defense issued supplemental
full NEPA consideration for covered
INRMPs for relevant Department of guidance for implementation of the
activities.
Defense installations and mandates that Sikes Act relating to INRMP reviews.
plans be prepared in cooperation with Department of Defense policy requires Service Response: As stated in this
the Service and State fish and wildlife installations to review INRMPs annually rule, the Armed Forces will continue to
agencies. The purpose of INRMPs is to in cooperation with the Service and be responsible for being in compliance
plan natural resource management State resource agencies. Annual reviews with NEPA, and all other applicable
activities within the capabilities of the facilitate adaptive management by regulations, and ensuring that whenever
biological setting to support military providing an opportunity for the parties they propose to undertake new military
training requirements. Although the to review the goals and objectives of the readiness activities or to adopt a new, or
Sikes Act does not apply to the Coast plans and to establish a realistic materially revised, INRMP and
Guard, the Coast Guard is also starting schedule for undertaking proposed migratory bird species may be affected,
to encourage their bases to address actions. During annual reviews of the the Armed Forces invite the Service to
natural resource activities through INRMPs, the Department of Defense will comment as an agency with
INRMPs. The Service has been and also discuss with the Service ‘‘jurisdiction by law or special
continues to be committed to expanding conservation measures implemented expertise’’ upon their NEPA analysis. In
partnerships with the Department of and the effectiveness of these measures addition, if the potential for significant
Defense. Updated Department of in avoiding, minimizing, or mitigating effects on migratory birds makes it
Defense guidance stresses that take of migratory birds. appropriate, the Armed Forces may
installations shall work in cooperation This rule relies on the Armed Forces invite the Service to participate as a
with the Service and States while utilizing the NEPA process to determine cooperating agency in the preparation of
developing or revising INRMPs. Each whether any ongoing or proposed their NEPA analysis. Moreover,
installation will invite annual feedback military readiness activity is likely to authorization under this rule requires
from the Service and States concerning result in a significant adverse effect on that if a proposed military readiness
how effectively the INRMP is being a population of a migratory bird species. activity may result in a significant
implemented. Installations have also The rule requires the Armed Forces to adverse impact on a population of
established and maintain regular develop and implement appropriate migratory bird species, the Armed
communications with the Service and conservation measures if a proposed Forces must confer and cooperate with
State fish and wildlife agencies to action may have a significant adverse the Service to develop and implement
address issues concerning natural effect on a population of migratory bird appropriate measures to minimize or
resources management including species. To ensure that such mitigate these effects. The
migratory birds. conservation measures adequately environmental consequences of the
The Sikes Act also offers address impacts to migratory birds, the proposed military readiness activity, as
opportunities beyond the INRMP rule also requires the Armed Forces to well as the potential of any such
process for States and the Service to monitor the effects of such military measures to reduce the adverse effects
offer their expertise and assistance on readiness activities on migratory bird of the proposed activity, would be
military lands and with respect to species taken during the military covered in NEPA documentation
migratory birds. For example, under the readiness activities at issue, and to prepared for the proposed action.
Sikes Act, the Department of Defense retain records of these measures and Comment: The Department of Defense
can enter into cooperative agreements monitoring data for 5 years from the should be required to demonstrate that
with the Service, States, and nonprofit date the Armed Forces commence their all ‘‘practicable’’ means of avoiding the
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organizations to benefit birds and other action. ‘‘take’’ of migratory birds have been
species. Programs such as the Comment: We do not believe that considered prior to the implementation
Chesapeake Bay Program, Coastal impacts addressed by this rule can be of a new readiness program or
America, and Partners In Flight also adequately monitored or remedied construction of a new installation.

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Service Response: The Armed Forces Defense, the Service, and State wildlife activity may significantly affect a
will be addressing ‘‘take’’ in a variety of agencies. The 1997 amendments to the population of a migratory bird species,
ways. As stated above, through the Sikes Act require the development of a greater benefit to birds will result than
NEPA process, the environmental INRMPs that reflect the mutual the current status operandi. Increased
consequences of their proposed military agreement of the Department of Defense, coordination and technical assistance
readiness activities will be evaluated, as the Service, and the appropriate State between the Service and the Armed
well as any measures to reduce take of wildlife agency. The Sikes Act provides Forces will reduce the number of
migratory birds. In addition, the the Service, as well as the public, an migratory birds that are incidentally
INRMPs currently incorporate opportunity to review natural resources taken as a result of military readiness
conservation measures to address management on military lands, activities.
migratory bird conservation. The including any potential effects on
Measures Taken by the Armed Forces
Service will continue to work with the migratory birds or their habitat. NEPA
To Minimize and Mitigate Takes of
Armed Forces to develop additional documentation is prepared to support
Migratory Birds
measures in the future. new or revised INRMPs. Department of
Comment: Nowhere does the rule Defense policy requires installations to As the basis for this rule, under the
mention how and when the Department review INRMPs annually in cooperation authority of the MBTA and in
of Defense will assess current, ongoing with the Service and State resource accordance with Section 315 of the
activities for which NEPA compliance is agencies. Annual reviews facilitate Authorization Act, the Armed Forces
complete. The rule should be amended adaptive management by providing an will consult with the Service to identify
to require, within a specified time opportunity for the parties to review the measures to minimize and mitigate
period of 90–120 days, a report by the goals and objectives of the plans and to adverse impacts of authorized military
Department of Defense to the Secretary evaluate any new scientific information readiness activities on migratory birds
on the impacts of their current military that indicates the potential for adverse and to identify techniques and protocols
readiness activities on migratory birds. impacts on migratory birds from new or to monitor impacts of such activities.
Service Response: As a preliminary ongoing military readiness activities. In The inventory, avoidance, habitat
matter, it is important to note that where addition, during annual INRMP reviews, enhancement, partnerships, and
NEPA compliance has been completed, the Department of Defense, the Service monitoring efforts described below
that compliance should have included and the State resources agency evaluate illustrate the efforts currently
consideration of the impacts on the conservation measures implemented undertaken by the Armed Forces to
migratory birds. Since the enactment of and the effectiveness of these measures minimize or mitigate adverse impacts to
NEPA, the Service has been notified of, in avoiding, minimizing, or mitigating migratory birds from testing and
and provided the opportunity to take of migratory birds. training activities to maintain a ready
comment on, proposed military This rule requires the Armed Forces defense. Additional conservation
readiness activities that have the to develop and implement appropriate measures, designed to minimize and
potential for significant impacts on the conservation measures if a proposed mitigate adverse impacts of authorized
environment, including significant action may have a significant adverse military readiness activities on affected
impacts on migratory birds. effect on a population of migratory bird migratory bird species, with emphasis
Nevertheless, it is possible that ongoing species. When conservation measures on species of concern, will be developed
military readiness activities might in the implemented in accordance with in joint coordination with the Service
future be determined to meet the § 21.15(a)(1) require monitoring, the when evaluation of specific military
threshold for the requirement under Armed Forces must retain records of readiness activities indicates the need
§ 21.15(a)(1) to ‘‘confer and cooperate.’’ these measures and monitoring data for for additional measures.
There are at least three mechanisms in 5 years from the date the Armed Forces We have a long history of working
place that require the Armed Forces to commence their action. with natural resources managers at
address environment impacts of ongoing Comment: We disagree with the Armed Forces installations through our
activities for which NEPA is complete; interpretation of the statute that Field Offices to develop and implement
supplementary statements under NEPA, Congress ‘‘signaled that the Department these conservation initiatives. Many of
INRMP reviews, and the monitoring of Defense should give appropriate the conservation measures detailed
requirements in the rule. consideration to the protection of below represent state-of-the-art
In accordance with NEPA Part 1502.9, migratory birds when planning and techniques and practices to inventory,
an agency shall prepare a supplement to executing military readiness activities, protect, and monitor migratory bird
either a draft or a final environmental but not at the expense of diminishing populations. In accordance with
impact statement whenever: (1) The the effectiveness of such activities.’’ provisions of the Sikes Act, as amended,
agency makes substantial changes in the This suggests a diminishment of these conservation measures are
proposed action that are relevant to protection for migratory birds. It was detailed in Department of Defense
environmental concerns; or (2) the Congress’s intent that the Department of INRMPs for specific installations and
agency learns of significant new Defense should not be forced to halt endorsed by the Service and State fish
circumstances or information relevant to these activities but rather should modify and wildlife agencies. Additional
environmental concerns and bearing on them to minimize impacts, or, if such conservation measures may be
the proposed action or its impacts. This activities cannot be practicably altered incorporated into future revisions of the
rule relies on the Armed Forces to use to minimize impacts, that mitigation INRMPs if determined necessary during
the NEPA process to determine whether measures must be in place to ensure their quintennial review.
an ongoing military readiness activity conservation of migratory birds. Bird Conservation Planning. The
may result in a significant adverse effect Service Response: This rule will not Department of Defense prepares
on a population of a migratory bird diminish the protection of migratory INRMPs for most Department of Defense
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species. birds. Rather, by requiring the Armed installations. Under the Sikes Act, the
The Sikes Act (16 U.S.C. 670a–670o), Forces to confer with the Service to Department of Defense must provide for
enacted in 1960, has required develop and implement conservation the conservation and rehabilitation of
cooperation among the Department of measures when a military readiness natural resources on military

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installations. To facilitate the program, Service’s Division of Migratory Bird Partners in Flight (http://
the Secretary of Defense prepares and Management. The current list of the www.partnersinflight.org).
implements an INRMP for each military ‘‘Birds of Conservation Concern’’ is Conservation Partnerships. The
installation in the United States on available at http:// Department of Defense has entered into
which significant natural resources are migratorybirds.fws.gov/reports/ a number of conservation partnerships
found. The resulting plans must reflect bcc2002.pdf. with nonmilitary partners to improve
the mutual agreement of the military ‘‘Birds of Conservation Concern 2002’’ habitats and protect avian species. In
installation, the Service, and the includes species that are of concern 1991, the Department of Defense,
appropriate State fish and wildlife because of (a) documented or apparent through each of the military services,
agency on conservation, protection, and population declines, (b) small or joined the PIF initiative. The
management of fish and wildlife restricted populations, or (c) Department of Defense developed a PIF
resources. The importance of a dependence on restricted or vulnerable Strategic Plan in 1994, and revised it in
cooperative relationship among these habitats. It includes three distinct 2002. The Department of Defense PIF
parties is also stressed in Department of geographic scales: Bird Conservation program is recognized as a model
Defense and Service guidances Regions, Service Regions, and National. conservation partnership program.
concerning INRMP development and The Service Regions include the seven Through the PIF initiative, the
review. In accordance with the Service Regions plus the Hawaiian Department of Defense works in
Department of Defense guidance, each Islands and Puerto Rico/U.S. Virgin partnership with over 300 Federal and
installation will invite annual feedback Islands. State agencies and nongovernmental
from the Service and States concerning Bird Conservation Regions (BCRs), organizations (NGOs) for the
how effectively the INRMP is being adopted by the North American Bird conservation of neotropical migratory
implemented. Installations also Conservation Initiative (NABCI), are the and resident birds and enhancement of
maintain regular communications with most basic geographical unit by which migratory bird survival. For example,
the Service and State fish and wildlife migratory birds are designated as birds bases have worked with NGOs to
agencies to address issues concerning of conservation concern. The BCR list develop management plans that address
natural resources management includes certain species endemic to such issues as grazing and the
including migratory birds. Although the Hawaii, the Pacific Island territories, conversion of wastewater treatment
Sikes Act does not apply to the Coast and the U.S. Caribbean Islands that are ponds to wetlands and suitable habitat.
Guard, they are also starting to not protected by the MBTA, and thus Universities use Department of Defense
encourage applicable bases to develop are not subject to this rule. These lands for migratory bird research and,
INRMPs. on occasion, re-establish nesting pairs to
species are clearly identified in the list.
INRMPs incorporate conservation take advantage of an installation’s
The complete BCR list contains 276
measures addressed in Regional or State hospitable habitat. The Department of
species. NABCI is a coalition of U.S.,
Bird Conservation Plans to ensure that Defense PIF program tracks this research
Canadian, and Mexican governmental
the Department of Defense does its part and provides links between
agencies and private organizations
in landscape-level management efforts. complementary research on different
working together to establish an
INRMPs are a significant source of installations and service branches.
inclusive framework to facilitate The Authorization Act included a
baseline conservation information and
regionally based, biologically driven, provision that allows the Department of
conservation initiatives used to develop
landscape-oriented bird conservation Defense to provide property at closed
NEPA documents for military readiness
partnerships. A map of the NABCI BCRs bases to conservation organizations for
activities. This linkage helps to ensure
that appropriate conservation measures can be viewed at http://www.nabci- use as habitat and another provision
are incorporated into mitigation actions, us.org. that, in order to lessen problems of
where needed, that will protect The comprehensive bird conservation encroachment, allows the Department of
migratory birds and their habitats. plans, such as the North American Defense to purchase conservation
To-date, over 370 INRMPs have been Waterfowl Management Plan, the U.S. easements on suitable property in
approved. Through cooperative Shorebird Conservation Plan, Partners partnership with other groups. Where
planning in the development, review in Flight (PIF) Bird Conservation Plans, utilized, these provisions will offer
and revision of INRMPs, the Department and the North American Waterbird further conservation benefits to
of Defense, the Service and the States Conservation Plan, are the result of migratory birds.
can effectively avoid or minimize coordinated partnership-based national Bird Inventories. The most important
adverse impacts on migratory bird and international initiatives dedicated factor in minimizing and mitigating
populations. Through this process, the to migratory bird conservation. Each of takes of migratory birds is an
Service and the Department of Defense these initiatives has produced understanding of when and where such
will continue to work together to design landscape-oriented conservation plans takes are likely to occur. This means
and develop monitoring surveys that that lay out population goals and habitat developing knowledge of migratory bird
effectively evaluate population trends objectives for birds. Additional habits and life histories, including their
and cumulative impacts on information on these plans and their migratory paths and stopovers as well as
installations. respective migratory bird conservation their feeding, breeding, and nesting
The Fish and Wildlife Conservation goals can be found at: habits.
Act of 1980, as amended in 1988, directs North American Waterfowl The Department of Defense
the Secretary of the Interior to ‘‘identify Management Plan (http:// implements bird inventories and
species, subspecies, and populations of birdhabitat.fws.gov/NAWMP/ monitoring programs in numerous ways.
all migratory non-game birds that, nawmphp.htm). Some Department of Defense
without additional conservation action, North American Waterbird installations have developed
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are likely to become candidates for Conservation Plan (http:// partnerships with the Institute for Bird
listing under the Endangered Species www.waterbirdconservation.org). Populations to Establish Monitoring
Act of 1973.’’ This list is prepared and U.S. Shorebird Conservation Plan Avian Productivity and Survivorship
updated at 5-year intervals by the (http://shorebirdplan.fws.gov/). (MAPS) stations. The major objective of

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the MAPS program is to contribute to an Clemson University to collect, analyze, benign sweep of the site to ensure that
integrated avian population monitoring and use the biological information from any migratory birds in the area are
system for North American land birds the NEXRAD network to identify dispersed before live ordnance is used.
by providing annual regional indices important stopover habitat in relation to Another tool used by the Department of
and estimates for four populations and Department of Defense installations. Defense to deconflict flight training
demographic parameters for select target Initial efforts were concentrated in the activities is the U.S. Air Force Bird
species in seven different regions of Southeast to complement existing radar Avoidance Model (BAM). This model
North America. The MAPS methodology data from the Gulf Coast. This places breeding bird and Christmas
provides annual regional indices of partnership has enabled the collection count data into a Geographic
adult population size and post-fledgling and transfer of radar data from all Information Systems model to assist
productivity from data on the numbers NEXRAD sites, via modem, to one range planners in selecting training
and proportions of young and adult remote station at Clemson University, times when bird activity is low. The
birds captured; annual regional where the data can be archived and BAM is available online at the http://
estimates of adult population size, adult analyzed. www.usahas.com Web site.
survivorship, and recruitment into the The Department of Defense uses bird Pesticide Reduction. Reducing or
adult population from capture-recapture inventory and survey information in eliminating pesticide use also benefits
data on adult birds; and additional connection with the preparation of migratory birds. The Armed Forces
annual estimates of adult population INRMPs. The Department of Defense maintain an integrated pest management
size from point-count data collected in also uses bird inventory and survey (IPM) program that is designed to
the vicinity of MAPS stations. Without information when undertaking reduce the use of pesticides to the
these critical data, it is difficult or environmental analyses required under minimum necessary. The Department of
impossible to account for observed the NEPA. An environmental Defense policy requires all operations,
population changes. The Department of assessment or an environmental impact activities, and installations worldwide
Defense is helping to establish a statement is used to determine the to establish and maintain safe, effective,
network of MAPS stations in all seven potential effects of any new, planned and environmentally sound IPM
biogeographical regions and build the activity on natural resources, including programs. IPM is defined as a planned
program necessary to monitor migratory birds. program, incorporating continuous
neotropical migratory bird population The Department of Defense PIF monitoring, education, record-keeping,
changes nationwide. Approximately program is currently developing a and communication to prevent pests
20% of the continental MAPS network database of migratory bird species of and disease vectors from causing
involves military lands. concern that are likely to occur on each unacceptable damage to operations,
Since the early 1940s, radar has been installation utilizing the Service’s people, property, material, or the
used to monitor bird migration. The published list of Birds of Conservation environment. IPM uses targeted,
newest weather surveillance radar, Concern (http://migratorybirds.fws.gov/ sustainable (i.e., effective, economical,
WSR–88D or NEXRAD (for Next reports/bcc2002.pdf); priority migratory and environmentally sound) methods,
Generation Radar), is ideal for studies of bird species documented in the including education, habitat
bird movements in the atmosphere. This comprehensive bird conservation plans modification, biological control, genetic
sophisticated radar system can be used (North American Waterbird control, cultural control, mechanical
to map geographical areas of high bird Conservation Plan (http:// control, physical control, regulatory
activity (e.g., stopover, roosting and www.waterbirdconservation.org), United control, and the judicious use of least-
feeding, and colonial breeding areas). It States Shorebird Conservation Plan hazardous pesticides. Department of
also provides information on the (http://shorebirdplan.fws.gov), Partners Defense policy mandates incorporation
quantity, general direction, and in Flight Bird Conservation Plans of sustainable IPM philosophy,
altitudinal distribution of birds aloft. (http://www.partnersinflight.org/); strategies, and techniques in all aspects
Currently, the United States Air Force is species or populations of waterfowl of Department of Defense pest
using NEXRAD, via the U.S. Avian identified as high, or moderately high, management planning, training, and
Hazard Advisory System (AHAS), to continental priority in the North operations, including installation pest-
provide bird hazard advisories to all American Waterfowl Management Plan; management plans and other written
pilots, military and civilian, in an listed threatened and endangered bird guidance to reduce pesticide risk and
attempt to warn air traffic of significant species in 50 CFR 17.11; and Migratory prevent pollution.
bird activity. The information is Bird Treaty Act-listed game birds below Habitat Conservation and
publicly available for the contiguous desired population sizes (http:// Enhancement. Habitat conservation and
United States on line at http:// migratorybirds.fws.gov/reports/ enhancement generally involve
www.usahas.com and will soon be reports.html). improvements to existing habitat, the
available for the State of Alaska. Avoidance. Avoidance is the most creation of new habitat for migratory
NEXRAD information is critically effective means of minimizing takes of birds, and enhancing degraded habitats.
important for the protection of habitats migratory birds. Where practicable, the Improvements to existing habitat
used by migratory birds during stopover Department of Defense avoids include wetland protection,
periods. This information is vital to potentially harmful use of nesting sites maintenance and enhancement of forest
Department of Defense land managers during breeding and nesting seasons buffers, elimination of feral animals (in
who protect stopover areas on military and of resting sites on migratory particularly feral cats) that may be a
land. The data is also particularly pathways during migration seasons. threat to migratory birds, and
important to land managers of military Avoidance sometimes involves using elimination of invasive species that
air stations where bird/aircraft one area of a range rather than another. crowd out other species necessary to
collisions threaten lives and cost On some sites in which bombing, migratory bird survival. Examples of the
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millions of dollars in damages every strafing, or other activities involving the latter include control and elimination of
year. The Department of Defense use of live military munitions could brown tree snake, Japanese
established a partnership with the affect birds in the area, the Department honeysuckle, kudzu, and brown-headed
Department of Biological Sciences at of Defense may conduct an initial, cowbirds.

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Efforts to eliminate invasive species data may be lacking, monitoring may collisions because of the danger such
are being undertaken in association with include the collection of baseline collisions represent to pilots, crews, and
natural resources management under demographic, population, or habitat- aircraft. By focusing on local, regional,
Sikes Act INRMPs. For example, at one association data. Where feasible, the and seasonal populations and
site, grazing was reduced from more Armed Forces will conduct agreed-upon movements of birds, pilots and airport
than 60,000 to about 23,000 acres, and monitoring to determine the level of personnel have been better able to avoid
has become a management tool to take from military readiness activities. collisions, in many cases by modifying
enhance the competitive advantage of Monitoring provides important data those conditions at airfields that are
native plants, especially perennial regarding the impacts of military attractive to birds.
grasses. Special projects are under way readiness on migratory birds. It also
on Department of Defense property to contributes valuable information where What Are the Provisions of the Rule?
control exotic plants and to remove data on species of migratory birds may National Environmental Policy Act
unused structures that occupy be limited. In addition, monitoring data (NEPA) Considerations
potentially valuable habitat or assists the Armed Forces in guiding
NEPA, and the Council on
unnaturally increase predator their decisions regarding migratory bird
Environmental Quality’s (CEQ) NEPA
populations. At some locations, native conservation, particularly in developing
implementing regulations at 40 CFR
forest habitat is being reestablished. or amending INRMPs.
The Department of Defense monitors 1500–1508, require that Federal
The preparation of INRMPs continues
bird populations that may be affected by agencies prepare environmental impact
to offer opportunities to consider such
military readiness activities in statements for ‘‘major Federal actions
land management measures as
numerous ways. In addition to the significantly affecting the quality of the
converting to uneven-age and/or other
progressive forest management that MAPS program discussed above, human environment.’’ These statements
enhances available habitat values, Department of Defense facilities must include a detailed analysis of the
establishing native warm-season participate in the Breeding Biology impacts of an agency’s proposed action
grasslands, maintaining and enhancing Research and Monitoring Database and any reasonable alternatives to that
bottomland hardwood forests, and (BBIRD) program to study nesting proposal. NEPA requires the responsible
promoting positive water-use success and habitat requirements for Federal official to ‘‘consult with and
modifications to improve hydrology and breeding birds. Many installations also obtain comments of any Federal agency
avian habitat in arid areas. Department engage in Christmas bird counts, which has jurisdiction by law or special
of Defense installations are active in migration counts (Point, Circle, Area, or expertise with respect to any
promoting the use of nest boxes and, Flyover Counts), standardized and/or environmental impact involved’’ (42
where appropriate, the use of customized breeding and wintering U.S.C. 4332(2)(C)). NEPA also provides
communications towers for nesting. In point counts, grassland-bird flush for public involvement in the decision-
addition, the Department of Defense PIF counts, NEXRAD (discussed above) and making process. The CEQ’s regulations
program has prepared fact sheets BIRDRAD studies, point count surveys, implementing NEPA emphasize the
addressing such issues as hawk watches, overflight surveys, and/ integration of the NEPA process with
communications towers and power or rookery surveys. At sites where bird the requirements of other environmental
lines, West Nile virus, wind energy takes are a concern, such as Farallon de laws. The CEQ regulations at 40 CFR
development, the Important Bird Areas Medinilla in the Northern Marianas, the 1500.2 state: ‘‘Federal agencies shall to
program, and bird/aircraft strike hazards Department of Defense engages in more the fullest extent possible * * *
(BASH). extensive monitoring, including integrate the requirements of NEPA with
Other. At a few sites where the overflight and rookery surveys several other planning and environmental
potential for migratory bird take is more times a year, so that it can monitor review procedures required by law or by
severe, the Department of Defense has trends in bird populations. agency practice so that all such
implemented extensive mitigation The Department of Defense is not procedures run concurrently rather than
measures. In such instances, the alone in monitoring the status of birds consecutively.’’ Regulations at 40 CFR
responsible military service has taken on its installations. Much of its 1502.25 state: ‘‘To the fullest extent
practicable measures to minimize the monitoring is done through formal possible, agencies shall prepare draft
impacts of its operations on protected partnerships with conservation environmental impact statements
migratory birds. Such measures include organizations. In addition, Watchable concurrently with and integrated with
limiting the type and quantity of Wildlife programs provide opportunities environmental impact analyses and
ordnance; limiting target areas and for the public to provide feedback on related surveys and studies required by
activities to places and times that the numbers and types of birds they * * * other environmental review laws
protect key nesting areas for migratory have observed from viewing sites on and executive orders.’’
birds; implementing fire-suppression Department of Defense installations. In keeping with this emphasis, the
programs or measures where wildfire The Armed Forces can use clear rule relies on the Armed Forces utilizing
can potentially damage nesting habitat; evidence of bird takes, such as the sight the NEPA process to determine whether
conducting environmental monitoring; of numerous dead or injured birds, as a any ongoing or proposed military
and implementing mitigation measures, signal that it should modify its readiness activity is ‘‘likely to result in
such as predator removal, on the site or activities, as practicable, to reduce the a significant adverse effect on the
nearby. number of takes. With respect to the population of a migratory bird species.’’
problem of bird/aircraft collisions, the More particularly, the Armed Forces
Monitoring the Impacts of Military Department of Defense undertakes prepare NEPA analyses whenever they
Readiness Activities on Migratory Birds intensive, bird-by-bird monitoring. The propose to undertake a new military
The Authorization Act requires the U.S. Air Force Safety Center’s Bird/ readiness activity that may significantly
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Armed Forces to identify measures to Wildlife Aircraft Strike Hazard team at affect the quality of the human
monitor the impacts of military Kirtland Air Force Base, NM, and the environment; propose to make a
readiness activities on migratory birds. Navy Safety Center at Norfolk, VA, track substantial change to an ongoing
For military lands where migratory bird aircraft/wildlife (bird and mammal) military readiness activity that is

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8944 Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Rules and Regulations

relevant to environmental concerns; apply for and receive an MBTA permit When Is Take Not Authorized?
learn of significant new circumstances for scientific collecting, control of birds If a proposed or an ongoing action
or information relevant to the causing damage to military property, or may have a significant adverse effect on
environmental concerns bearing on an any other activity that is addressed by a population of a migratory bird species,
ongoing military readiness activity; or our existing permit regulations (50 CFR as that term is defined in Section 21.3,
prepare or revise an INRMP covering an part 13, 21, 22). These activities may not the Armed Forces must confer with the
area used for military readiness be conducted under the authority of this Service so that we may recommend
activities. During the preparation of rule. If any activity of the Armed Forces conservation measures. In certain
environmental impact statements falls within the scope of our existing circumstances, the Secretary must
analyzing the effects of proposed regulations, we will consider, when suspend the take authorization with
military readiness activities on processing the application, the specific respect to a particular military readiness
migratory bird species, the Armed take requested as well as any other take activity; in other circumstances, the
Forces consult with the Service as an authorized by this rule that may occur. Secretary has the discretion to initiate a
agency with ‘‘jurisdiction by law and Authorization of take under this rule
process that may result in withdrawal.
special expertise.’’ If the Armed Forces applies to take of migratory birds
We will make every effort to work with
identify a significant adverse effect on incidental to military readiness
activities, including (a) all training and the Armed Forces in advance of a
migratory birds during the preparation
operations of the Armed Forces that potential determination to withdraw
of a NEPA analysis, this rule requires
relate to combat, and (b) the adequate take authorization in order to resolve
the Armed Forces to confer and
and realistic testing of military migratory bird take concerns and avoid
cooperate with the Service to develop
equipment, vehicles, weapons, and withdrawal. With respect to
and implement appropriate
sensors for proper operation and discretionary withdrawal, the rule
conservation measures to minimize or
suitability for combat use. Authorization provides an elevation process if the
mitigate any such significant adverse
of take does not apply to (a) routine Secretary of Defense or other national
effects. The Armed Forces will continue
to be responsible for ensuring that operation of installation operating defense official appointed by the
military readiness activities are support functions, such as: President and confirmed by the Senate
implemented in accordance with all administrative offices; military determines that protection of national
applicable statutes including NEPA and exchanges; commissaries; water security requires continuation of the
ESA. treatment facilities; storage facilities; activity.
schools; housing; motor pools; The Secretary will immediately
Endangered Species Act Consideration laundries; morale, welfare, and suspend authorization for take if
Section 7(a)(1) of the Endangered recreation activities; shops; and mess continued authorization likely would
Species Act of 1973, as amended (16 halls, (b) operation of industrial not be compatible with any one of the
U.S.C. 1531 et seq.) (ESA), provides activities, or (c) construction or migratory bird treaties. Withdrawal of
that, ‘‘[t]he Secretary [of the Interior] demolition of facilities listed above. authorization may be proposed if the
shall review other programs The authorization provided by this Secretary determines that failure to do
administered by him and utilize such rule is subject to the military service so is likely to result in a significant
programs in furtherance of the purposes conducting an otherwise lawful military adverse effect on a population of a
of this Act.’’ Furthermore, section readiness activity in compliance with migratory bird species and one or more
7(a)(2) requires all Federal agencies to the provisions of the rule. To ensure the of the following circumstances apply:
insure that any action authorized, Service maintains the ability to manage (A) The Armed Forces have not
funded, or carried out is not likely to and conserve the resource, the Secretary implemented conservation measures that (i)
jeopardize the continued existence of retains the authority to withdraw or are directly related to protecting the
any endangered species or threatened suspend authorization of take with migratory bird species affected by the
species or result in the destruction or proposed military readiness activity; (ii)
respect to any specific military would significantly reduce take of migratory
adverse modification of critical habitat. readiness activity under certain birds species affected by the military
We completed an Intra-Service circumstances. readiness activity, (iii) are economically
Consultation on the proposed rule and With respect to a military readiness feasible, and (iv) do not limit the
we have determined that this rule to activity of the Armed Forces likely to effectiveness of military readiness activities.
authorize take under the MBTA will take migratory birds, the rule authorizes (B) The Armed Forces fail to conduct
have no effect on listed species. The take provided the Armed Forces are in mutually agreed upon monitoring to
rule does not authorize take under the compliance with the following determine the effects of a military readiness
activity on migratory bird species and/or the
ESA. If a military readiness activity may requirement: efficacy of the conservation measures
affect a listed species, the Armed Forces If the Armed Forces determine that implemented by the Armed Forces.
retains responsibility for consulting ongoing or proposed activities may result in (C) The Armed Forces have not provided
with the Service under section 7(a)(2) of a significant adverse effect on the population reasonably available information that the
the ESA. Similarly, if a military of a migratory bird species, the Armed Forces Secretary has determined is necessary to
readiness activity is likely to jeopardize must confer and cooperate with the Service evaluate whether withdrawal of take
the continued existence of a species to develop and implement appropriate authorization for the specific military
proposed for listing, the Armed Forces conservation measures to minimize or readiness activity is appropriate.
mitigate such significant adverse effects. The determination as to whether an
retain responsibility for conferring with
the Service in accordance with section The Armed Forces will continue to be immediate suspension of authorization
7(a)(4) of the ESA. responsible for addressing their is warranted (i.e., whether the action
activities other than military readiness likely would not be compatible with a
Rule Authorization through a MOU developed in migratory bird treaty), or withdrawal of
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This rule authorizes the Armed Forces accordance with Executive Order 13186, an authorization is proposed will be
to take migratory birds as an incidental ‘‘Responsibilities of Federal Agencies to made independent of each other.
result of military readiness activities. Protect Migratory Birds,’’ January 10, Regardless of whether the circumstances
The Armed Forces must continue to 2001. of paragraphs (A) through (C) above

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exist, there will be an immediate contractors of the Armed Forces and to migratory birds may result from
suspension if the Secretary determines, their agents. proposed military readiness activities.
after seeking the views of the Secretary ‘‘Conservation measures’’ are project
Principles and Standards designs or mitigation activities that are
of Defense and after consulting with the
Secretary of State, that incidental take of As discussed above, the only technically and economically
migratory birds during a specific condition applicable to the reasonable, and minimize the take of
military readiness activity likely would authorization under this rule is that the migratory birds and adverse impacts
not be compatible with one or more of Armed Forces confer and cooperate while allowing for completion of an
the migratory bird treaties. with the Service if the Armed Forces action in a timely manner. When
Proposed withdrawal of authorization determine that a proposed or an ongoing appropriate, the Armed Forces should
will be provided in writing to the military readiness activity may result in adopt existing industry guidelines
Secretary of Defense including the basis a significant adverse effect on a supported by the Service and developed
for the determination. The notice will population of a migratory bird species. to avoid or minimize take of migratory
also specify any conservation measures To avoid this threshold from being birds. We recognize that
or other measures that would, if the reached, as well as to provide for implementation of conservation
Armed Forces agree to implement them, migratory bird conservation, it is in the measures will be subject to the
allow the Secretary to cancel the best interest of the Armed Forces to availability of appropriations.
proposed withdrawal of authorization. address potential migratory bird impacts The Armed Forces should promote
Any take incidental to a military from military readiness activities by the inclusion of comprehensive
readiness activity subject to a proposed adopting the following principles and migratory bird management objectives
withdrawal of authorization will standards. from bird conservation plans into the
continue to be authorized by this planning documents of the Armed
To proactively address migratory bird
regulation until the Secretary of the Forces. The bird conservation plans,
conservation, the Armed Forces should
Interior, or his/her delegatee, makes a available either from the Service’s
engage in early planning and scoping
final determination on the withdrawal. Regional Offices or via the Internet,
and involve agencies with special
The Secretary may, at his/her include: North American Waterfowl
expertise in the matters relating to the
discretion, cancel a suspension or Management Plan, PIF, and the U.S.
potential impacts of a proposed action.
withdrawal of authorization at any time. Shorebird Conservation Plan. The North
When a proposed action by the Armed
A suspension may be cancelled in the American Waterbird Conservation Plan,
Forces related to military readiness may
event new information is provided that the newest planning effort, addresses
result in the incidental take of birds, the
the proposed activity would be conservation of seabirds, wading birds,
Armed Forces should contact the terns, gulls, and some marsh birds, and
compatible with the migratory bird
Service so we can assist the Armed their habitats. The Armed Forces should
treaties. A proposed withdrawal may be
Forces in addressing potential adverse also work collaboratively with partners
cancelled if the Armed Forces modify
impacts on birds and mitigating those to identify, protect, restore, and manage
the proposed activity to alleviate
impacts. As stated in this rule, the Important Bird Areas, Western
significant adverse effects on a
Armed Forces must confer with the Hemisphere Shorebird Reserve Network
population of a migratory bird species
Service when these actions may have a sites, and other significant bird sites that
or the circumstances in paragraphs (A)
significant adverse effect on a occur on Department of Defense lands.
through (C) above no longer exist.
population of a migratory bird species. The Department of Defense should
Cancellation of suspension or
withdrawal of authorization becomes The Armed Forces will, in close continue to work through the PIF
effective upon delivery of written notice coordination with the Service, develop program to incorporate bird habitat
from the Secretary to the Department of a list of conservation measures designed management efforts into INRMPs.
Defense. to minimize and mitigate potential In accordance with the Authorization
adverse impacts of authorized military Act and the 2002 revised Sikes Act
Request for Reconsideration readiness activities on affected guidelines, the annual review of
In order to ensure that the action of migratory bird species. A cooperative INRMPs by the Department of Defense,
the Secretary in not authorizing take approach initiated early in the project in cooperation with the Service and
does not result in significant harm to the planning process will have the greatest State fish and wildlife agencies, will
Nation, any proposal to withdraw potential for successfully reducing or include monitoring results of any
authorization under 50 CFR 21.15(b)(2) eliminating adverse impacts. Our migratory bird conservation measures.
will be reconsidered by the Secretary or recommendations will emphasize The Armed Forces will use the best
his/her delegatee who must be an avoidance, minimization, and rectifying available databases to determine which
official nominated by the President and adverse impacts. The Armed Forces migratory bird species are likely to
confirmed by the Senate, if, within 45 should consider obvious avoidance occur in the area of proposed military
days of the notification with respect to measures at the outset of project readiness activities. This includes
a military readiness activity, the planning, such as siting projects to species likely to occur in the project
Secretary of Defense, or other national avoid important nesting areas or to area during all phases of the project.
defense official, who also must be an avoid collisions of birds with structures, The Armed Forces will use the best
official nominated by the President and or timing projects to avoid peak scientific data available to assess,
confirmed by the Senate, determines breeding activity. In addition, models through the NEPA process or other
that protection of the national security such as the AHAS and BAM should be environmental requirements, the
requires continuation of the action. used to avoid bird activity when expected impact of proposed or ongoing
planning flight training and range use. military readiness activities on
Scope of Authorization The Armed Forces will consider these migratory bird species likely to occur in
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The take authorization provided by conservation measures for incorporation action areas. Special consideration will
the rule applies to military readiness in new NEPA analyses, INRMPs, INRMP be given to priority habitats, such as
activities of the Armed Forces, revisions, and base comprehensive or important nesting areas, migration stop-
including those implemented through master plans, whenever adverse impacts over areas, and wintering habitats.

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The Armed Forces will adopt, to the insectivorous birds are useful to The broad language of the exceptions
maximum extent practicable, agriculture, they provide recreational in the Japan, Russia, and Canada treaties
conservation measures designed to benefits and are useful for scientific and clearly indicate that the intent of the
minimize and mitigate any adverse educational purposes, and they are parties was not to prohibit all take of
impacts of authorized military readiness important for aesthetic, social, and migratory birds. Just as clearly, the take
activities on affected migratory bird spiritual purposes. Collectively, the of large absolute numbers of birds (e.g.
species. The term ‘‘to the maximum treaties require the Unites States to millions of birds taken in sport hunting)
extent practicable’’ means without provide mechanisms for protecting the is allowable under the treaties, so long
limiting the subject readiness activities birds and their habitats, and include as that take is ultimately limited in a
in ways that compromise the special emphasis on protecting those way that is consistent with the
effectiveness of those activities, and to birds that are in danger of extinction. conservation principles and objectives
the extent economically feasible. The Japan and Russia treaties each of the treaties. Thus, allowing for take
At the Department of Defense’s call for implementing legislation that incidental to military readiness
request, the Service will provide broadly prohibits the take of migratory activities is, as a general matter,
technical assistance in identifying the birds. At the same time, those treaties consistent with the conservation
migratory bird species and determining allow the implementing legislation to principles and objectives of all three of
those likely to be taken as a result of the include exceptions to the take these treaties.
proposed action, assessing impacts of prohibitions. The treaties recognize a The Mexico treaty does not require
the action on migratory bird species, variety of purposes for which take may the parties to prohibit incidental take,
and identifying appropriate be authorized, including scientific, and therefore allowing take incidental to
conservation measures to mitigate educational, and propagative purposes; military readiness activities cannot
adverse impacts. the protection of persons or property; conflict with the terms of that treaty.
and hunting during open seasons. The And even if that treaty was read to
Is this rule consistent with the MBTA?
treaties also contemplate authorizing apply more broadly, it is clear that the
Yes. This issue has two components. takings ‘‘for specific purposes not parties intended it only to require the
First is the question of whether the inconsistent with the objectives [or rational regulation of take, not an
MBTA prohibits promulgation of principles]’’ of the treaties. The Canada absolute prohibition. Allowing take
regulations authorizing incidental take treaty, since adoption of the 1995 incidental to military readiness
of migratory birds pursuant to military Protocol, now includes similar activities is consistent with the needs
readiness activities. Second is the language: ‘‘the taking of migratory birds set forth in Article I. More broadly, we
question of whether the details of this may be allowed * * * for * * * conclude that any incidental take
rule, individually and collectively, specific purposes consistent with the allowed under the broad exceptions of
conflict with the MBTA in some way. conservation principles of this the other three treaties is consistent
The starting point for answering both Convention.’’ with the Mexico treaty.
questions is the fact that Sections 704 In contrast, the take prohibitions Turning to the second question,
and 712(2) of 16 U.S.C. provide us with required by the 1936 Mexico treaty have whether this particular rule governing
broad authority to promulgate a narrower focus than the later treaties. take incidental to military readiness
regulations allowing for the take of The Mexico treaty is more clearly activities is consistent with the treaties
migratory birds when compatible with directed at stopping the indiscriminate (and therefore the MBTA), the take that
the terms of the migratory bird treaties. killing of migratory birds by hunting is authorized here is for a special
We find the take that is authorized in and for commercial purposes through purpose consistent with the principles
this rule is compatible with the terms of the establishment of closed seasons. In and objectives of the treaties. The
the treaties and consistent with the addition, even the language of the authorization allows take of birds only
purposes of the treaties. Mexico treaty that addresses the need in limited instances—take that results
Regarding the first question, whether for domestic regulation prohibiting from military readiness activities.
any such regulations are permissible certain activities with respect to Furthermore, the rule expressly requires
under the MBTA, Congress itself by migratory birds is subject to the the Armed Forces to develop
passing the Authorization Act objective ‘‘to satisfy the need set forth in conservation measures to minimize or
determined that such regulations are * * * Article[I].’’ Article I provides: ‘‘In mitigate impacts where such impacts
consistent with the MBTA and the order that the species may not be may have a significant adverse effect on
underlying treaties by requiring us to exterminated, the high contracting a population of a migratory bird species.
promulgate such regulations. Even in parties declare that it is right and proper Moreover, the Secretary must suspend
the absence of the Authorization Act, to protect birds denominated as the take authorization if he/she
regulations authorizing take incidental migratory, whatever may be their origin, concludes that a specific military
to military readiness activities are which in their movements live readiness activity likely would not be
compatible with the terms of the temporarily in the United States of compatible with the migratory bird
treaties, and therefore authorized by the America and the United Mexican States, treaties and may withdraw the
MBTA. by means of adequate methods which authorization if he/she is unable to
The MBTA implements four treaties: will permit, in so far as the respective obtain from Armed Forces the
a 1916 treaty with Great Britain on high contracting parties may see fit, the information needed to assure
behalf of Canada that was substantially utilization of said birds rationally for compliance. Thus, the authorization in
amended by a 1995 protocol; a 1936 purposes of sport, food, commerce and this rule in effect incorporates a
treaty with Mexico, amended by a 1997 industry.’’ Therefore, to the extent that safeguard that provides for compliance
protocol; a 1972 treaty with Japan; and the Mexico treaty is interpreted to have with the requirements of the treaties.
a 1978 treaty with the former Soviet application to take beyond hunting and It is not entirely clear what level of
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Union. These international agreements the like, that treaty must also be effect on a migratory bird population
recognize that migratory birds are interpreted to allow the parties to would be required to constitute a
important for a variety of purposes. authorize take that is consistent with the violation of any of the treaties. It is
They provide a food resource, needs set forth in Article I. clear, however, that the relatively minor

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(at a population level) amount of take activities subject to certain limitations related to costs associated with
caused by military readiness activities is and subject to withdrawal of the developing and implementing
exceedingly unlikely to constitute a authorization to ensure consistency conservation measures to minimize or
possible violation, even in the absence with the provisions of the treaties. mitigate impacts from military readiness
of any safeguards. When combined with activities that may have a significant
Required Determinations
the procedural safeguards set forth in adverse effect on a population of a
this rule, there is no reasonable chance Regulatory Planning and Review (E.O. migratory bird species. However, we
that a violation of the treaties will occur 12866). In accordance with the criteria anticipate that this threshold of
under this rule. In these circumstances, in Executive Order 12866, this rule is a potential effects on a population has a
the take that would be authorized by significant regulatory action. OMB low probability of occurring. The Armed
this rule is thus compatible with the makes the final determination of Forces are already obligated to comply
terms of the treaties and consistent with significance under Executive Order with a host of other environmental laws,
the purposes of those treaties. 12866. such as NEPA, which requires them to
The rule’s process of broad, automatic a. Analysis indicates this rule will not assess impacts of their military
authorization subject to withdrawal is have an annual economic effect of $100 readiness activities on migratory birds,
particularly appropriate to military million or adversely affect an economic endangered and threatened species, and
readiness activities. First, as noted sector, productivity, jobs, the other wildlife. Most of the requirements
above, we expect that military readiness environment, or other units of of this rule will be subsumed by these
activities will rarely, if ever, have the government. This rule is intended to existing requirements.
broad impact that would lead to a benefit the Department of Defense, and
With this rule, the Armed Forces will
significant adverse effect on a all of its branches of the Armed Forces,
have a regulatory mechanism to enable
population of migratory bird species, by providing a mechanism to comply
the Armed Forces to effectively
even absent the conservation measures with the MBTA and the treaties. A full
implement otherwise lawful military
that the Armed Forces undertake cost-benefit and economic analysis is
readiness activities. Without the rule,
voluntarily or pursuant to another not required.
This rule will not affect small the Armed Forces might not be able to
statute, such as the ESA. Second, the complete certain military readiness
Armed Forces, like other federal businesses or other segments of the
private sector. It applies only to the activities that could result in the take of
agencies, have a special role in ensuring migratory birds pending issuance of an
that the United States complies with its Armed Forces. Thus, any expenditure
under this rule will accrue only to the MBTA take permit or resolution of any
obligations under the four migratory lawsuits.
bird treaties, as evidenced by the national defense agencies. Our current
regulations allow us to permit take of b. This rule will not create serious
Migratory Bird Executive Order 13186
migratory birds only for limited types of inconsistencies or otherwise interfere
(January 10, 2001). Like other Federal
activities. This rule authorizes take with the actions of the Armed Forces,
agencies, the Armed Forces strive not
resulting from the military readiness including those other than military
only to lessen detrimental effects of
activities of the Armed Forces, provided readiness. The Armed Forces must
their actions on migratory birds but to
the Armed Forces comply with certain already comply with numerous
actively promote the conservation of the
requirements to minimize or mitigate environmental laws intended to
resource and integrate conservation
significant adverse effects on a minimize impacts to wildlife.
principles and practices into agency
programs. Numerous internal programs population of a migratory bird species. c. This rule will not materially affect
and collaborative ventures among Analysis of the annual economic entitlements, grants, user fees, loan
Federal agencies and non-Federal effect of this rule indicates that it will programs, or the rights and obligations
partners have contributed significantly have de minimis effects for the of their recipients. This rule does not
to avian conservation. These efforts are following reasons. Without the rule, the have anything to do with such
grounded in the tenets of stewardship Armed Forces could be subject to programs.
inherent in our treaty obligations. Third, injunction by third parties via the APA d. This rule raises novel legal or
given the importance of military for lack of authorization under the policy issues. This rule raises a novel
readiness to national security, it is MBTA for incidental takes of migratory policy issue in that it implements a new
especially important not to create a birds that might result from military area of our program to carry out the
complex process that, while perhaps readiness activities. This rule will MBTA. Under 50 CFR 21.27, the Service
useful in other contexts, might impede enable the Armed Forces to alleviate has the authority to issue special
the timely carrying-out of military costs associated with responding to purpose permits for take that is
readiness activities. litigation as well as costs associated otherwise outside the scope of the
with delays in military training. standard form permits of section 21.
Why does the rule apply only to the Furthermore, the rule is structured such Special purpose permits may be issued
Armed Forces? that the Armed Forces are not required for actions whereby take of migratory
This rule was developed in to apply for individual permits to birds could result as an unintended
accordance with the Authorization Act, authorize take for every individual consequence. However, the Service has
which created an interim period, during military readiness activity. The take previously issued such permits only in
which the prohibitions on incidental authorization is conveyed by this rule. very limited circumstances.
take of migratory birds would not apply This avoids potential costs associated Regulatory Flexibility Act. For the
to military readiness activities, and with staff necessary to prepare and reasons discussed under Regulatory
required the development of regulations review applications for individual Planning and Review above, I certify
authorizing the incidental take of permits to authorize military readiness that this rule will not have a significant
migratory birds associated with military activities that may result in incidental economic effect on a substantial number
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readiness activities. This rule carries out take of migratory birds, and the costs of small entities as defined under the
the mandates of the Authorization Act. that would be attendant to delay. Regulatory Flexibility Act (5 U.S.C. 601
This rule authorizes take resulting from The principal annual economic cost et seq.). A final Regulatory Flexibility
otherwise lawful military readiness to the Armed Forces will likely be Analysis is not required. Accordingly, a

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Small Entity Compliance Guide is not Civil Justice Reform. In accordance across which these activities may occur
required. with Executive Order 12988, the Office is potentially unique. Because of the
Small Business Regulatory of the Solicitor has determined that this broad spectrum of activities, their
Enforcement Fairness Act. This rule is rule will not unduly burden the judicial locations, habitat types, and migratory
not a major rule under 5 U.S.C. 804(2), system and that it meets the birds potentially present that may be
the Small Business Regulatory requirements of sections 3(a) and 3(b)(2) affected by this rule, the potential
Enforcement Fairness Act. This rule: of the Order. The intent of the rule is to impacts of military readiness activities
a. Will not have an annual effect on relieve the Armed Forces and the conducted by the Armed Forces on the
the economy of $100 million or more. judicial system from potential litigation affected environment are too broad,
b. Will not cause a major increase in resulting from potential take of speculative and conjectural to lend
costs or prices for consumers, migratory birds during military themselves to meaningful analysis.
individual industries, Federal, State, or readiness activities. The Department of Thus, it is premature to examine
local government agencies, or the Interior has certified to the Office of potential impacts of the rule.
geographic regions. Management and Budget that this rule However, this determination does not
c. Will not have significant adverse meets the applicable standards provided diminish the responsibility of the
effects on competition, employment, in Sections 3(a) and 3(b)(2) of Executive Armed Forces to comply with NEPA
investment, productivity, innovation, or Order 12988. and individual military readiness
the ability of U.S.-based enterprises to Paperwork Reduction Act. This rule activities at issue will be subject to the
compete with foreign-based enterprises. will not require any new information NEPA process by the Armed Forces to
Unfunded Mandates Reform Act. In collections under the Paperwork evaluate any environmental impacts.
accordance with the Unfunded Reduction Act of 1995 (44 U.S.C. 3501 Whenever the Armed Forces propose to
Mandates Reform Act (2 U.S.C. 1501, et et seq.). Under the Paperwork Reduction undertake new military readiness
seq.): Act, we do not need to seek Office of activities or to adopt a new, or
a. This rule will not ‘‘significantly or Management and Budget (OMB) materially revised, Integrated Natural
uniquely’’ affect small governments. A approval to collect information from Resources Management Plan, and
Small Government Agency Plan is not current Federal employees, military migratory bird species may be affected,
required. We have determined and personnel, military reservists, and the Armed Forces will consult with and
certified pursuant to the Unfunded members of the National Guard in their obtain comments from the Service, an
Mandates Reform Act, 2 U.S.C. 1502 et professional capacities. Because this agency with ‘‘jurisdiction by law or
seq., that this rulemaking will not rule will newly enable us to collect special expertise,’’ upon their NEPA
impose a cost of $100 million or more information only from employees of the analysis. The NEPA analysis will
in any given year on local or State Armed Forces in their professional include cumulative effects where
government or private entities. capacity, we do not need to seek OMB applicable. In addition, if the potential
b. This rule will not produce a approval under the Paperwork for significant effects on migratory birds
Federal mandate of $100 million or Reduction Act. In other cases, Federal makes it appropriate, the Armed Forces
greater in any year, i.e., it is not a agencies may not conduct or sponsor, may invite the Service to participate as
‘‘significant regulatory action’’ under and members of the public are not a cooperating agency in the preparation
the Unfunded Mandates Reform Act. required to respond to, a collection of of their NEPA analysis. Moreover,
Takings. In accordance with information unless it displays a authorization under this rule requires
Executive Order 12630, the rule does currently valid OMB control number. that if a proposed military readiness
not have significant takings National Environmental Policy Act. activity may result in a significant
implications. A takings implication We have determined that this rule is adverse impact on a population of
assessment is not required. The only categorically excluded under the migratory bird species, the Armed
effect of this rule is to authorize Department of the Interior’s NEPA Forces must confer and cooperate with
incidental takes of migratory birds by procedures in Part 516 of the the Service to develop and implement
the Armed Forces as a result of military Departmental Manual, Chapter 2, appropriate measures to minimize or
readiness activities. This rule will not Appendix 1, Categorical Exclusion 1.10. mitigate these effects. The
result in the physical occupancy of Categorical Exclusion 1.10 applies to: environmental consequences of the
property, the physical invasion of ‘‘policies, directives, regulations, and proposed military readiness activity, as
property, or the regulatory taking of any guidelines of an administrative, well as the potential of any such
property. financial, legal, technical or procedural measures to reduce the adverse effects
Federalism. In accordance with nature and whose environmental effects of the proposed activity, would be
Executive Order 13132, and based on are too broad, speculative, or conjectural covered in NEPA documentation
the discussions in Regulatory Planning to lend themselves to meaningful prepared for the proposed action.
and Review above, this rule will not analysis and will later be subject to the We have also determined that this
have significant Federalism effects. A NEPA process, either collectively or authorization would not result in
Federalism assessment is not required. case-by-case.’’ ‘‘extraordinary circumstances’’ whereby
Due to the migratory nature of certain Military readiness activities of the actions cannot be categorically excluded
species of birds, and given the Federal Armed Forces occur across a broad pursuant to 516 DM 2.3A(2). This rule
Government’s responsibility to geographic area covering a wide only authorizes the incidental take of
implement the migratory bird treaties, diversity of habitat types and potentially migratory birds (with limitations) as a
Congress assigned the Federal affecting a high diversity of migratory result of military readiness activities.
Government responsibility over these birds. Potential impacts on migratory We are not authorizing the Armed
species when it enacted the MBTA. This birds will also vary spatially and Forces to implement military readiness
rule will not have a substantial direct temporally across the landscape. In activities that may have significant
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effect on fiscal capacity, change the addition, the specific type of military adverse impacts on natural resources,
roles or responsibilities of Federal or readiness activity will vary significantly have highly controversial environment
State governments, or intrude on State among the Armed Forces, and the effects, or result in significant
policy or administration. biological and geographical spectrum cumulative impacts. If an individual

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military readiness action by the Armed PART 21—[AMENDED] Significant adverse effect on a
Forces or the cumulative impacts of population, as used in § 21.15, means an
multiple activities may result in such an ■ 1. The authority citation continues to effect that could, within a reasonable
impact, then the Armed Forces will be read as follows: period of time, diminish the capacity of
responsible for completing an Authority: Migratory Bird Treaty Act, 40 a population of migratory bird species to
environmental analysis in accordance Stat. 755 (16 U.S.C. 703); Public Law 95–616, sustain itself at a biologically viable
with NEPA. We are also not authorizing 92 Stat. 3112 (16 U.S.C. 712(2)); Public Law level. A population is ‘‘biologically
the take of a federally listed or proposed 106–108, 113 Stat. 1491, Note following 16 viable’’ when its ability to maintain its
U.S.C. 703. genetic diversity, to reproduce, and to
species. The Armed Forces must still
comply with the Endangered Species ■ 2. Amend § 21.3 by adding the function effectively in its native
Act. following definitions, in alphabetical ecosystem is not significantly harmed.
Furthermore, we expect that military order: This effect may be characterized by
readiness activities will rarely, if ever, increased risk to the population from
§ 21.3 Definitions.
have the broad impact that would lead actions that cause direct mortality or a
* * * * * reduction in fecundity. Assessment of
to a significant adverse effect on a Armed Forces means the Army, Navy,
population of a migratory bird species, impacts should take into account yearly
Air Force, Marine Corps, Coast Guard, variations and migratory movements of
even absent the conservation measures and the National Guard of any State.
that the Armed Forces undertakes the impacted species. Due to the
* * * * * significant variability in potential
voluntarily or pursuant to another
Conservation measures, as used in military readiness activities and the
statute. The Armed Forces also have an
§ 21.15, means project design or species that may be impacted,
important role in ensuring that the
mitigation activities that are reasonable determinations of significant
United States complies with the four
from a scientific, technological, and measurable decline will be made on a
migratory bird treaties, the Endangered
economic standpoint, and are necessary case-by-case basis.
Species Act, and other applicable
to avoid, minimize, or mitigate the take ■ 3. Amend part 21, subpart B, by
regulations for individual ongoing or
of migratory birds or other adverse adding a new § 21.15 as follows:
proposed military readiness activities.
impacts. Conservation measures should
A copy of the Service’s Categorical be implemented in a reasonable period § 21.15 Authorization of take incidental to
Exclusion determination is available of time. military readiness activities.
upon request at the address indicated in (a) Take authorization and
* * * * *
the ADDRESSES section of this rule. monitoring.
Military readiness activity, as defined
Government-to-Government in Pub. L. 107–314, § 315(f), 116 Stat. (1) Except to the extent authorization
Relationship with Tribes. In accordance 2458 (Dec. 2, 2002) [Pub. L. § 319 (c)(1)], is withdrawn or suspended pursuant to
with the President’s memorandum of includes all training and operations of paragraph (b) of this section, the Armed
April 29, 1994, ‘‘Government-to- the Armed Forces that relate to combat, Forces may take migratory birds
Government Relations with Native and the adequate and realistic testing of incidental to military readiness
American Tribal Governments’’ (59 FR military equipment, vehicles, weapons, activities provided that, for those
22951), E.O. 13175, and 512 DM 2, we and sensors for proper operation and ongoing or proposed activities that the
have evaluated possible effects on suitability for combat use. It does not Armed Forces determine may result in
federally recognized Indian tribes and include (a) routine operation of a significant adverse effect on a
have determined that there are no installation operating support functions, population of a migratory bird species,
effects. This rule applies only to such as: administrative offices; military the Armed Forces must confer and
military readiness activities carried out exchanges; commissaries; water cooperate with the Service to develop
by the Armed Forces that take migratory treatment facilities; storage facilities; and implement appropriate
birds. It will not interfere with the schools; housing; motor pools; conservation measures to minimize or
Tribes’ ability to manage themselves or laundries; morale, welfare, and mitigate such significant adverse effects.
their funds. (2) When conservation measures
recreation activities; shops; and mess
Energy Effects. On May 18, 2001, the implemented under paragraph (a)(1) of
halls, (b) operation of industrial
President issued Executive Order 13211 this section require monitoring, the
activities, or (c) construction or
on regulations that significantly affect Armed Forces must retain records of
demolition of facilities listed above.
energy supply, distribution, or use. This any monitoring data for five years from
Population, as used in § 21.15, means
Executive Order requires agencies to the date the Armed Forces commence
a group of distinct, coexisting,
prepare Statements of Energy Effects their action. During Integrated Natural
conspecific individuals, whose breeding
when undertaking certain actions. As Resource Management Plan reviews, the
site fidelity, migration routes, and
this rule is not expected to significantly Armed Forces will also report to the
wintering areas are temporally and
affect energy supply, distribution, or Service migratory bird conservation
spatially stable, sufficiently distinct
use, this action is not a significant measures implemented and the
geographically (at some time of the
energy action, and no Statement of effectiveness of the conservation
year), and adequately described so that
Energy Effects is required. measures in avoiding, minimizing, or
the population can be effectively
mitigating take of migratory birds.
List of Subjects in 50 CFR Part 21 monitored to discern changes in its
(b) Suspension or Withdrawal of take
status.
authorization.
Exports, Hunting, Imports, Reporting * * * * * (1) If the Secretary determines, after
and recordkeeping requirements, Secretary of Defense means the seeking the views of the Secretary of
Transportation, Wildlife. Secretary of Defense or any other Defense and consulting with the
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■ For the reasons described in the national defense official who has been Secretary of State, that incidental take of
preamble, we amend title 50, chapter I, nominated by the President and migratory birds during a specific
subchapter B of the Code of Federal confirmed by the Senate. military readiness activity likely would
Regulations as follows: * * * * * not be compatible with one or more of

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

the migratory bird treaties, the Secretary (3) When the Secretary proposes to proposed withdrawal of authorization
will suspend authorization of the take withdraw authorization with respect to will continue to be authorized by this
associated with that activity. a specific military readiness activity, the regulation until the Secretary makes a
(2) The Secretary may propose to Secretary will first provide written final determination on the withdrawal.
withdraw, and may withdraw in notice to the Secretary of Defense. Any (6) The Secretary may, at his or her
accordance with the procedures such notice will include the basis for discretion, cancel a suspension or
provided in paragraph (b)(4) of this the Secretary’s determination that withdrawal of authorization at any time.
section the authorization for any take withdrawal is warranted in accordance A suspension may be cancelled in the
incidental to a specific military with the criteria contained in paragraph event new information is provided that
readiness activity if the Secretary (b)(2) of this section, and will identify the proposed activity would be
determines that a proposed military any conservation measures or other compatible with the migratory bird
readiness activity is likely to result in a measures that would, if implemented by treaties. A proposed withdrawal may be
significant adverse effect on the the Armed Forces, permit the Secretary cancelled if the Armed Forces modify
population of a migratory bird species to cancel the proposed withdrawal of the proposed activity to alleviate
and one or more of the following authorization. significant adverse effects on the
circumstances exists: (4) Within 15 days of receipt of the population of a migratory bird species
(i) The Armed Forces have not notice specified in paragraph (b)(3) of or the circumstances in paragraphs
implemented conservation measures this section, the Secretary of Defense (b)(2)(i) through (iii) of this section no
that: may notify the Secretary in writing of longer exist. Cancellation of suspension
(A) Are directly related to protecting the Armed Forces’ objections, if any, to or withdrawal of authorization becomes
the migratory bird species affected by the proposed withdrawal, specifying the effective upon delivery of written notice
the proposed military readiness activity; reasons therefore. The Secretary will from the Secretary to the Department of
(B) Would significantly reduce take of give due consideration to any objections Defense.
the migratory bird species affected by raised by the Armed Forces. If the (7) The responsibilities of the
the military readiness activity; Secretary continues to believe that Secretary under paragraph (b) of this
(C) Are economically feasible; and withdrawal is appropriate, he or she section may be fulfilled by his/her
(D) Do not limit the effectiveness of will provide written notice to the delegatee who must be an official
the military readiness activity; Secretary of Defense of the rationale for nominated by the President and
(ii) The Armed Forces fail to conduct withdrawal and response to any confirmed by the Senate.
mutually agreed upon monitoring to objections to the withdrawal. If Dated: July 25, 2006.
determine the effects of a military objections to the withdrawal remain, the Matt Hogan,
readiness activity on migratory bird withdrawal will not become effective Acting Assistant Secretary for Fish and
species and/or the efficacy of the until the Secretary of Defense has had Wildlife and Parks.
conservation measures implemented by the opportunity to meet with the Dated: April 10, 2006.
the Armed Forces; or Secretary within 30 days of the original
Philip W. Grone,
(iii) The Armed Forces have not notice from the Secretary proposing
withdrawal. A final determination Deputy Under Secretary of Defense
provided reasonably available (Installations and Environment).
information that the Secretary has regarding whether authorization will be
determined is necessary to evaluate withdrawn will occur within 45 days of This document was received at the Office
whether withdrawal of take the original notice. of the Federal Register on February 23, 2007.
authorization for the specific military (5) Any authorized take incidental to [FR Doc. E7–3443 Filed 2–27–07; 8:45 am]
readiness activity is appropriate. a military readiness activity subject to a BILLING CODE 4310–55–P
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