[Federal Register Volume 69, Number 106 (Wednesday, June 2, 2004)]
[Proposed Rules]
[Pages 31074-31085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11411]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

RIN 1018-AI92


Migratory Bird Permits; Take of Migratory Birds by Department of 
Defense

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Migratory Bird Treaty Act (MBTA) prohibits the taking, 
killing, or possessing of migratory birds unless permitted by 
regulations promulgated by the Secretary of the Interior. While some 
courts have held that the MBTA does not apply to Federal agencies, in 
July 2000, the United States Court of Appeals for the District of 
Columbia Circuit ruled that the prohibitions of the MBTA do apply to 
Federal agencies, and that a Federal agency's taking and killing of 
migratory birds without a permit violated the MBTA. On March 13, 2002, 
the United States District Court for the District of Columbia ruled 
that military training exercises of the Department of the Navy that 
incidentally take migratory birds without a permit violate the MBTA.
    On December 2, 2002, the President signed the 2003 National Defense 
Authorization Act. Section 315 of the Authorization Act provides that, 
not later than one year after its enactment, the Secretary of the 
Interior (Secretary) shall exercise her authority under section 704(a) 
of the MBTA to prescribe regulations to exempt the Armed Forces for the 
incidental taking of migratory birds during military readiness 
activities authorized by the Secretary of Defense or the Secretary of 
the military department concerned. The Authorization Act further 
requires the Secretary to promulgate such regulations with the 
concurrence of the Secretary of Defense. This proposed rule has been 
developed in coordination and cooperation with the Department of 
Defense and the Secretary of Defense concurs with the requirements 
herein.
    Current regulations authorize permits for take of migratory birds 
for activities such as scientific research, education, and depredation 
control. However, these regulations do not expressly address the 
issuance of permits for incidental take. As directed by section 315 of 
the Authorization Act, we are proposing this rule to authorize such 
take, with limitations, that result from Department of Defense military 
readiness activities. If the Department of Defense determines that a 
proposed or an ongoing military readiness activity may result in a 
significant adverse effect on the sustainability of a population of a 
migratory bird species of concern, then they must confer and cooperate 
with the U.S. Fish and Wildlife Service (Service) to develop 
appropriate and reasonable-conservation measures to minimize or 
mitigate identified significant adverse effects. The Secretary of the 
Interior, or her designee, will retain the power to withdraw or suspend 
the authorization for particular activities in appropriate 
circumstances.
    We invite your comments on this proposed rule.

DATES: We will accept comments on this proposed rule until August 2, 
2004.

ADDRESSES: You may mail, fax, or deliver comments to the Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service, 4401 North 
Fairfax Drive, Room 4107, Arlington, Virginia 22203-1610, fax (703) 
358-2217. Comments can also be sent on-line at [email protected]. The 
proposed rule and other related documents can be downloaded at http://migratorybirds.fws.gov. The complete file for this proposed rule is 
available for inspection, by appointment, during normal business hours 
at the Division of Migratory Bird Management, U.S. Fish and Wildlife 
Service, 4401 North Fairfax Drive, Arlington, Virginia 22203, telephone 
(703) 358-1714.

FOR FURTHER INFORMATION CONTACT: Brian Millsap, Chief, Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service, telephone 
(703) 358-1714.

SUPPLEMENTARY INFORMATION: 

Background

    Migratory birds are of great ecological and economic value and are 
an important international resource. They are a key ecological 
component of the environment, and they also provide immense enjoyment 
to millions of Americans who study, watch, feed, or hunt them. 
Recognizing their importance, the United States has been an active 
participant in the internationally coordinated management and 
conservation of migratory birds. The Migratory Bird

[[Page 31075]]

Treaty Act (16 U.S.C. 703-712) (MBTA) is the primary legislation in the 
United States established to conserve migratory birds. We, the U.S. 
Fish and Wildlife Service (Service), are the Federal agency within the 
United States responsible for administering and enforcing the statute.
    The MBTA, originally passed in 1918, implements the United States' 
commitment to four bilateral treaties, or conventions, for the 
protection of a shared migratory bird resource. The original treaty 
upon which the MBTA was based was the Convention for the Protection of 
Migratory Birds signed with Great Britain in 1916 on behalf of Canada 
for the protection ``of the many species of birds that traverse certain 
parts of the United States and Canada in their annual migration.'' The 
MBTA was subsequently amended after treaties were signed with Mexico 
(1936, amended 1972, 1995), Japan (1972), and Russia (1976), and the 
amendment of the treaty with Canada (1999).
    The treaties and subsequent amendments impose substantive 
obligations on the United States for the conservation of migratory 
birds and their habitats, including, but not limited to, the following 
conservation principles:
    To conserve and manage migratory birds internationally;
    To sustain healthy migratory bird populations for consumptive and 
nonconsumptive uses;
    To provide for, maintain, and protect habitat necessary for the 
conservation of migratory birds; and
    To restore depleted populations of migratory birds.
    Each of the treaties protects selected species of birds and 
specifies closed seasons for hunting game birds. The list of the 
species protected by the MBTA appears in title 50, section 10.13, of 
the Code of Federal Regulations (50 CFR 10.13).
    Under the MBTA, it is unlawful ``by any means or in any manner, to 
pursue, hunt, take, capture, [or] kill'' any migratory birds except as 
permitted by regulation (16 U.S.C. 703). The regulations at 50 CFR 
21.11 prohibit the take of migratory birds except under a valid permit 
or as permitted in the implementing regulations. We define ``take'' to 
mean to ``pursue, hunt, shoot, wound, kill, trap, capture, or collect'' 
or to attempt these activities (50 CFR 10.12).
    On July 18, 2000, the United States Court of Appeals for the 
District of Columbia ruled in Humane Society v. Glickman, 217 F.3d 882 
(D.C. Cir. 2000), that Federal agencies are subject to the take 
prohibitions of the MBTA. The United States had previously taken the 
position, and two other courts of appeals held or suggested, that the 
MBTA does not by its terms apply to Federal agencies. See Sierra Club 
v. Martin, 110 F.3d 1551, 1555 (11th Cir. 1997); Newton County Wildlife 
Ass'n v U.S. Forest Service, 113 F.3d 110, 115 (8th Cir. 1997). 
Subsequently on December 20, 2000, we issued a Director's Order to 
clarify the Service's position that, pursuant to Glickman, Federal 
agencies are subject to the permit requirements of the Service's 
existing regulations.
    Because the MBTA is a criminal statute and does not provide for 
citizen suit enforcement, a private party who violates the MBTA is 
subject to investigation by the Service and/or prosecution by the 
Department of Justice. However, the Administrative Procedure Act (APA) 
allows private parties to file suit to prevent a Federal agency from 
taking ``final agency action'' that is ``arbitrary, capricious, an 
abuse of discretion, or otherwise not in accordance with law'' (5 
U.S.C. 706(2)(A)). If the prohibitions of the MBTA apply to Federal 
agencies, private parties could seek to enjoin Federal actions that 
take migratory birds, unless such take is authorized pursuant to 
regulations developed in accordance with 16 U.S.C. 704, even when such 
Federal actions are necessary to fulfill Government responsibilities 
and even when the action poses no threat to the species at issue.
    In Center for Biological Diversity v. Pirie, a private party 
obtained an injunction prohibiting live fire military training 
exercises of the Department of the Navy that had the effect of killing 
some migratory birds on the island of Farallon de Medinilla (FDM) in 
the Pacific Ocean. On March 13, 2002, the United States District Court 
for the District of Columbia ruled that the Navy activities at FDM 
resulting in a take of migratory birds without a permit from the 
Service violated the MBTA and the APA (191 F. Supp. 2d. 161 and 201 F. 
Supp. 2d 113). On May 1, after hearing argument on the issue of remedy, 
the Court entered a preliminary injunction ordering the Navy to apply 
for a permit from the Service to cover the activities, and 
preliminarily enjoined the training activities for 30 days. The United 
States Court of Appeals for the District of Columbia Circuit stayed the 
District Court's preliminary injunction pending appeal. The preliminary 
injunction, and associated stay, expired on May 31. A permanent 
injunction was issued by the District Court on June 3. The Circuit 
Court also stayed this injunction pending appeal on June 5, 2002. On 
December 2, 2002, the President signed the Authorization Act creating 
an interim period during which the prohibitions on incidental take of 
migratory birds would not apply to military readiness activities. 
During the interim period, Congress also directed the Secretary of the 
Interior to develop regulations that exempt the Armed Forces from 
incidental take during authorized military readiness activities. The 
Department of Defense must concur with the regulations before they take 
effect. The Circuit Court subsequently dismissed the Pirie case as 
moot. In light of the Glickman and Pirie decisions, the authorization 
that would be provided by this rule is essential to preserving the 
Service's role in determining what military readiness activities, if 
any, create an unacceptable risk to the migratory bird resources and 
should be modified or curtailed.
    The Department of Defense is responsible for protecting the United 
States from external threats. To provide for national security, they 
engage in military readiness activities, which include all training and 
operations of the Armed Forces that relate to combat, and the adequate 
and realistic testing of military equipment, vehicles, weapons, and 
sensors for proper operation and suitability for combat use. Military 
readiness does not include: (a) the routine operation of installation 
operating support functions, such as administrative offices, military 
exchanges, commissaries, water treatment facilities, storage 
facilities, schools, housing, motor pools, laundries, morale, welfare, 
and recreation activities, shops, and mess halls; (b) the operation of 
industrial activities; or (c) the construction or demolition of 
facilities listed above.
    The 2003 National Defense Authorization Act (Pub. L. 107-314, 116 
Stat. 2458, Dec. 2, 2002, 16 U.S.C. 703 note) (hereinafter 
``Authorization Act'') requires the Secretary of Defense, in 
consultation with the Secretary, to identify ways to minimize, 
mitigate, and monitor take of migratory birds during military readiness 
activities and requires the Secretary to prescribe, with the 
concurrence of the Secretary of Defense, a regulation that exempts such 
activities from the MBTA's prohibitions against take of migratory 
birds. With this language, Congress has signaled that the Department of 
Defense should give appropriate consideration to the protection of 
migratory birds when planning and executing military readiness 
activities, but not at the expense of diminishing the effectiveness of 
such activities. Any diminishment in effectiveness could impair the 
Department of Defense's ability to fulfill

[[Page 31076]]

its national security mission. Diminishment could occur when military 
training or testing is modified in ways that do not allow the full 
range of training methods to be explored.
    This proposed rule, if finalized, will authorize the Department of 
Defense to take migratory birds associated with military readiness 
activities, subject to certain limitations and subject to withdrawal of 
the authorization to ensure consistency with the provisions of the 
migratory bird treaties. The authorization provided by this rule is 
necessary to ensure that the work of the Department of Defense in 
meeting its statutory responsibilities can go forward. This rule is 
also appropriate and necessary to preserve the treaties as workable and 
sensible protections of a vital resource and to meet the Secretary's 
obligations under Section 704 of the MBTA as well as under Section 315 
of the Authorization Act. This proposed rule has been developed in 
coordination and cooperation with the Department of Defense and the 
Secretary of Defense concurs with the requirements herein.

Executive Order 13186

    Migratory bird conservation relative to the Department of Defense 
activities other than military readiness activities will be addressed 
separately in a Memorandum of Understanding (MOU) developed in 
accordance with Executive Order 13186, Responsibilities of Federal 
Agencies to Protect Migratory Birds, signed January 10, 2001. Upon 
completion of the MOU, and in keeping with the intent of the Executive 
Order for Federal agencies to promote the conservation of migratory 
bird populations, the Service proposes issuing a 50 CFR 21.27 Special 
Purpose Permit to address specific actions identified in the MOU not 
covered by this rule.

Measures Taken by the Department of Defense To Minimize and Mitigate 
Takes of Migratory Birds

    As the basis for this proposed rule, under the authority of the 
MBTA and in accordance with Section 315 of the Authorization Act, the 
Department of Defense will consult with the Service to identify 
measures to minimize and mitigate adverse impacts of authorized 
military readiness activities on migratory birds and to identify 
techniques and protocols to monitor impacts of such activities. The 
inventory, avoidance, habitat enhancement, partnerships, and monitoring 
efforts described below illustrate the efforts currently undertaken by 
the Department of Defense to minimize adverse impacts to migratory 
birds from testing and training activities to maintain a ready defense. 
Additional conservation measures, designed to minimize and mitigate 
adverse impacts of authorized military readiness activities on affected 
migratory bird species, with emphasis on species of concern, will be 
developed in joint coordination with the Service when specific military 
readiness activities suggest the need for additional measures.
    We have a long history of working with Department of Defense 
installation natural resources managers through our Field Offices to 
develop and implement these conservation initiatives. Many of the 
conservation measures detailed below represent state-of-the-art 
techniques and practices to inventory, protect, and monitor migratory 
bird populations. In accordance with provisions of the Sikes Act 
Improvement Act of 1997 (16 U.S.C. 670a et seq.), these conservation 
measures are detailed in Integrated Natural Resources Management Plans 
(INRMPs) for specific installations and endorsed by the Service and 
State fish and game agencies.
    Bird Conservation Planning. The Department of Defense prepares 
INRMPs for most of the Department of Defense installations. Under the 
Sikes Act, the Department of Defense must provide for the conservation 
and rehabilitation of natural resources on military installations. To 
facilitate the program, the Secretary of Defense prepares and 
implements an INRMP for each military installation in the United States 
on which significant natural resources are found. The resulting plans 
must reflect the mutual agreement of the military department, the 
Service, and the appropriate State fish and wildlife agency on 
conservation, protection, and management of fish and wildlife 
resources. INRMPs incorporate conservation measures addressed in 
Regional or State Bird Conservation Plans to ensure that the Department 
of Defense does its part in landscape-level management efforts. INRMPs 
are a significant source of baseline conservation information and 
conservation initiatives used to develop National Environmental Policy 
Act (NEPA) documents for military readiness activities. This linkage 
helps to ensure that appropriate conservation measures are incorporated 
into mitigation actions, where needed, which will protect migratory 
birds and their habitats.
    The Fish and Wildlife Conservation Act of 1980, as amended in 1988, 
directs the Secretary of the Interior to ``identify species, 
subspecies, and populations of all migratory non-game birds that, 
without additional conservation action, are likely to become candidates 
for listing under the Endangered Species Act of 1973.'' This list is 
prepared and updated at 5-year intervals by the Service's Division of 
Migratory Bird Management. The current list of the ``Birds of 
Conservation Concern'' is available at http://migratorybirds.fws.gov/reports/bcc2002.pdf.
    ``Birds of Conservation Concern 2002'' includes species that are of 
concern because of (a) documented or apparent population declines, (b) 
small or restricted populations, or (c) dependence on restricted or 
vulnerable habitats. It includes three distinct geographic scales: Bird 
Conservation Regions, Service Regions, and National. The Service 
Regions include the seven Service Regions plus the Hawaiian Islands and 
Puerto Rico/U.S. Virgin Islands.
    Bird Conservation Regions (BCRs), adopted by the North American 
Bird Conservation Initiative (NABCI), are the most basic geographical 
unit by which migratory birds are designated as birds of conservation 
concern. The BCR list includes certain species endemic to Hawaii, the 
Pacific Island territories, and the U.S. Caribbean Islands that are not 
protected by the MBTA, and thus are not subject to this proposed rule. 
These species are clearly identified in the list. The complete BCR list 
contains 276 species. NABCI is a coalition of U.S., Canadian, and 
Mexican governmental agencies and private organizations working 
together to establish an inclusive framework to facilitate regionally 
based, biologically driven, landscape-oriented bird conservation 
partnerships. A map of the NABCI BCRs can be viewed at http://www.nabci-us.org.
    The comprehensive bird conservation plans, such as the North 
American Waterfowl Management Plan, the U.S. Shorebird Conservation 
Plan, Partners in Flight (PIF) Bird Conservation Plans, and the North 
American Waterbird Conservation Plan, are the result of coordinated 
partnership-based national and international initiatives dedicated to 
migratory bird conservation. Each of these initiatives has produced 
landscape-oriented conservation plans that lay out population goals and 
habitat objectives for birds. Additional information on these plans and 
their respective migratory bird conservation goals can be found at:


[[Page 31077]]


North American Waterfowl Management Plan (http://birdhabitat.fws.gov/NAWMP/nawmphp.htm).
North American Waterbird Conservation Plan (http://www.waterbirdconservation.org).
U.S. Shorebird Conservation Plan (http://shorebirdplan.fws.gov/).
Partners in Flight (http://www.partnersinflight.org).
    Conservation Partnerships. The Armed Forces have entered into a 
number of conservation partnerships with nonmilitary partners to 
improve habitats and protect avian species. In 1991, the Department of 
Defense, through each of the military services, joined the PIF 
initiative. The Department of Defense developed a PIF Strategic Plan in 
1994, and revised it in 2002. The Department of Defense PIF program is 
recognized as a model conservation partnership program. Through the PIF 
initiative, the Department of Defense works in partnership with over 
300 Federal and State agencies and nongovernmental organizations (NGOs) 
for the conservation of neotropical migratory and resident birds and 
enhancing migratory bird survival. For example, bases have worked with 
NGOs to develop management plans that address such issues as grazing 
and the conversion of wastewater treatment ponds to wetlands and 
suitable habitat. Universities use the Department of Defense lands for 
migratory bird research and, on occasion, re-establish nesting pairs to 
take advantage of an installation's hospitable habitat. The Department 
of Defense PIF program tracks this research and provides links between 
complementary research on different installations and service branches.
    The Authorization Act included a provision that allows the 
Department of Defense to provide property at closed bases to 
conservation organizations for use as habitat and another provision 
that, in order to lessen problems of encroachment, allows the 
Department of Defense to purchase conservation easements on suitable 
property in partnership with other groups. Where utilized, these 
provisions will offer further conservation benefits to migratory birds.
    Bird Inventories. The most important factor in minimizing and 
mitigating takes of migratory birds is an understanding of when and 
where such takes are likely to occur. This means developing knowledge 
of migratory bird habits and life histories, including their migratory 
paths and stopovers as well as their feeding, breeding, and nesting 
habits.
    The Department of Defense implements bird inventories and 
monitoring programs in numerous ways. Some Department of Defense 
installations have developed partnerships with the Institute for Bird 
Populations to establish Monitoring Avian Productivity and Survivorship 
(MAPS) stations. The major objective of the MAPS program is to 
contribute to an integrated avian population monitoring system for 
North American land birds by providing annual regional indices and 
estimates for four population and demographic parameters for select 
target species in seven different regions of North America. The MAPS 
methodology provides annual regional indices of adult population size 
and post-fledgling productivity from data on the numbers and 
proportions of young and adult birds captured; annual regional 
estimates of adult population size, adult survivorship, and recruitment 
into the adult population from capture-recapture data on adult birds; 
and additional annual estimates of adult population size from point 
count data collected in the vicinity of MAPS stations. Without these 
critical data, it is difficult or impossible to account for observed 
population changes. The Department of Defense is helping to establish a 
network of MAPS stations in all seven biogeographical regions and build 
the program necessary to monitor neotropical migratory bird population 
changes nationwide. Approximately 20% of the continental MAPS network 
involves military lands.
    Since the early 1940s, radar has been used to monitor bird 
migration. The newest weather surveillance radar, WSR-88D or NEXRAD 
(for Next Generation Radar), is ideal for studies of bird movements in 
the atmosphere. This sophisticated radar system can be used to map 
geographical areas of high bird activity (e.g., stopover, roosting and 
feeding, and colonial breeding areas). It also provides information on 
the quantity, general direction, and altitudinal distribution of birds 
aloft. Currently, the United States Air Force is using NEXRAD, via the 
U.S. Avian Hazard Advisory System (AHAS), to provide bird hazard 
advisories to all pilots, military and civilian, in an attempt to warn 
air traffic of significant bird activity. The information is publicly 
available for the contiguous United States on line at http://www.usahas.com and will soon be available for the State of Alaska.
    The NEXRAD information is critically important for the protection 
of habitats used by migratory birds during stopover periods. This 
information is vital to the Department of Defense land managers who 
protect stopover areas on military land. The data is also particularly 
important to land managers of military air stations where bird/aircraft 
collisions threaten lives and cost millions of dollars in damages every 
year. The Department of Defense established a partnership with the 
Department of Biological Sciences at Clemson University to collect, 
analyze, and use the biological information from the NEXRAD network to 
identify important stopover habitat in relation to the Department of 
Defense installations. Initial efforts were concentrated in the 
Southeast to complement existing radar data from the Gulf Coast. This 
partnership has enabled the collection and transfer of radar data from 
all NEXRAD sites, via modem, to one remote station at Clemson 
University, where the data can be archived and analyzed.
    The Department of Defense uses bird inventory and survey 
information in connection with the preparation of INRMPs. The 
Department of Defense also uses bird inventory and survey information 
when undertaking environmental analyses required under the NEPA. An 
environmental assessment or an environmental impact statement is used 
to determine the potential effects of any new, planned activity on 
natural resources, including migratory birds.
    The Department of Defense PIF program is currently developing a 
database of bird species listed in the Service's ``Birds of 
Conservation Concern'' report that are likely to occur on each of the 
installations utilizing the Birds of Conservation Concern published by 
the Service. This database will be valuable in initially evaluating 
what species may potentially be affected by military readiness 
activities.
    Avoidance. Avoidance is the most effective means of minimizing 
takes of migratory birds. Where practicable, the Department of Defense 
avoids potentially harmful use of nesting sites during the breeding and 
nesting seasons and of resting sites on migratory pathways during 
migration seasons. Avoidance sometimes involves using one area of a 
range rather than another. On some sites in which bombing, strafing, or 
other activities involving the use of live military munitions could 
impact birds in the area, the Department of Defense may conduct an 
initial, benign sweep of the site to ensure that any migratory birds in 
the area are dispersed before live ordnance is used. Another tool used 
by the Department of Defense to deconflict flight training activities 
is the U.S. Air Force Bird Avoidance Model (BAM). This model

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places breeding bird and Christmas count data into a Geographic 
Information Systems model to assist range planners in selecting 
training times when bird activity is low. The BAM is available on line 
at the http://www.usahas.com Web site.
    Pesticide Reduction. Reducing or eliminating pesticide use also 
benefits migratory birds. The Department of Defense maintains an 
integrated pest management (IPM) program that is designed to reduce the 
use of pesticides to the minimum necessary. The Department of Defense 
policy requires all operations, activities, and installations worldwide 
to establish and maintain safe, effective, and environmentally sound 
IPM programs. IPM is defined as a planned program, incorporating 
continuous monitoring, education, record-keeping, and communication to 
prevent pests and disease vectors from causing unacceptable damage to 
operations, people, property, material, or the environment. IPM uses 
targeted, sustainable (i.e., effective, economical, and environmentally 
sound) methods, including education, habitat modification, biological 
control, genetic control, cultural control, mechanical control, 
physical control, regulatory control, and the judicious use of least-
hazardous pesticides. The Department of Defense policy mandates 
incorporation of sustainable IPM philosophy, strategies, and techniques 
in all aspects of the Department of Defense pest management planning, 
training, and operations, including installation pest management plans 
and other written guidance to reduce pesticide risk and prevent 
pollution.
    Habitat Conservation and Enhancement. Habitat conservation and 
enhancement generally involve improvements to existing habitat, the 
creation of new habitat for migratory birds, and enhancing degraded 
habitats. Improvements to existing habitat include wetland protection, 
maintenance and enhancement of forest buffers, elimination of feral 
animals (in particular, feral cats) that may be a threat to migratory 
birds, and elimination of invasive species that crowd out other species 
necessary to migratory bird survival. Examples of the latter include 
control and elimination of brown tree snake, Japanese honeysuckle, 
kudzu, and brown-headed cowbirds.
    Efforts to eliminate invasive species are being undertaken in 
association with natural resources management under Sikes Act INRMPs. 
For example, at one site, grazing was reduced from more than 60,000 to 
about 23,000 acres, and has become a management tool to enhance the 
competitive advantage of native plants, especially perennial grasses. 
Special projects are under way on Department of Defense property to 
control exotic plants and to remove unused structures that occupy 
potentially valuable habitat or unnaturally increase predator 
populations. At some locations, native forest habitat is being 
reestablished.
    The preparation of INRMPs continues to offer opportunities to 
consider such land management measures as converting to uneven-age and/
or other progressive forest management that enhances available habitat 
values, establishing native warm-season grasslands, maintaining and 
enhancing bottomland hardwood forests, and promoting positive water use 
modifications to improve hydrology and avian habitat in arid areas. 
Department of Defense installations are active in promoting the use of 
nest boxes and, where appropriate, the use of communications towers for 
nesting. In addition, the PIF program has prepared fact sheets 
addressing such issues as communications towers and power lines, West 
Nile virus, wind energy development, the Important Bird Areas program, 
and bird/aircraft strike hazards (BASH).
    Other. At the very few sites where the potential for migratory bird 
take is more severe, the Department of Defense has implemented 
extensive mitigation measures. In such instances, the responsible 
military service has taken practicable measures to minimize the impacts 
of their operations on protected migratory birds. Such measures include 
limiting the type and quantity of ordnance; limiting target areas and 
activities to places and times that protect key nesting areas for 
migratory birds; implementing fire suppression programs or measures 
where wildfire can potentially damage nesting habitat; conducting 
environmental monitoring; and implementing mitigation measures, such as 
predator removal, on the site or nearby.

Monitoring the Impacts of Military Readiness Activities on Migratory 
Birds

    The Department of Defense monitors bird populations that may be 
affected by military readiness activities in numerous ways. In addition 
to the MAPS program discussed above, Department of Defense facilities 
participate in the Breeding Biology Research and Monitoring Database 
(BBIRD) program to study nesting success and habitat requirements for 
breeding birds. Many installations also engage in Christmas bird 
counts, migration counts (Point, Circle, Area, or Fly Over Counts), 
standardized and/or customized breeding and wintering point counts, 
grassland bird flush counts, NEXRAD (discussed above) and BIRDRAD 
studies, point count surveys, hawk watches, overflight surveys, and/or 
rookery surveys. At sites where bird takes are a concern, such as 
Farallon de Medinilla in the Northern Marianas, the Department of 
Defense engages in more extensive monitoring, including overflight and 
rookery surveys several times a year so that it can monitor trends in 
bird populations.
    Department of Defense is not alone in monitoring the status of 
birds on its installations. Much of its monitoring is done through 
formal partnerships with conservation organizations. In addition, 
Watchable Wildlife programs provide opportunities for the public to 
provide feedback on the numbers and types of birds they have observed 
from viewing sites on Department of Defense installations.
    Department of Defense can use clear evidence of bird takes, such as 
the sight of numerous dead or injured birds, as a signal that it should 
modify its activities, as practicable, to reduce the number of takes. 
With respect to the problem of bird/aircraft collisions, the Department 
of Defense undertakes intensive, bird-by-bird monitoring. The U.S. Air 
Force Safety Center's Bird/Wildlife Aircraft Strike Hazard team at 
Kirtland Air Force Base, NM, and the Navy Safety Center at Norfolk, VA, 
track aircraft/wildlife (bird and mammal) collisions because of the 
danger such collisions represent to pilots, crews, and aircraft. By 
focusing on local, regional, and seasonal populations and movements of 
birds, pilots and airport personnel have been better able to avoid 
collisions, in many cases by modifying those conditions at airfields 
that are attractive to birds.
    Department of Defense will continue to develop and implement 
conservation measures, as described above, to mitigate adverse impacts 
on species of concern, from military readiness activities. Department 
of Defense will also continue to consult with the Service to identify 
measures to minimize and mitigate testing and training impacts and will 
continue to monitor the impacts of military readiness activities on 
species of concern.

What Are the Provisions of the Proposed Rule?

NEPA Considerations

    The NEPA, and its regulations at 40 CFR 1500-1508, require that 
Federal

[[Page 31079]]

agencies prepare environmental impact statements for ``major Federal 
actions significantly affecting the quality of the human environment.'' 
These statements must include a detailed analysis of the impacts of an 
agency's proposed action and any reasonable alternatives to that 
proposal. NEPA requires the responsible Federal official to ``consult 
with and obtain comments of any Federal agency which has jurisdiction 
by law or special expertise with respect to any environmental impact 
involved. 42 U.S.C. 4332(2)(C). NEPA also provides for public 
involvement in the decision making process. The Council on 
Environmental Quality's (CEQ) regulations implementing NEPA emphasize 
the integration of the NEPA process with the requirements of other 
environmental laws. CEQ regulations at 40 CFR 1500.2 state: ``Federal 
agencies shall to the fullest extent possible * * * integrate the 
requirements of NEPA with other planning and environmental review 
procedures required by law or by agency practice so that all such 
procedures run concurrently rather than consecutively.'' Regulations at 
40 CFR 1502.25 state: ``To the fullest extent possible, agencies shall 
prepare draft environmental impact statements concurrently with and 
integrated with environmental impact analyses and related surveys and 
studies required by * * * other environmental review laws and executive 
orders.''
    In keeping with this emphasis, the proposed rule anticipates that 
the Department of Defense will use the NEPA process to determine 
whether any ongoing or proposed military readiness activity is ``likely 
to result in a significant adverse effect on the population of a 
migratory bird species of concern.'' More particularly, the Department 
of Defense prepares NEPA analyses whenever they propose to undertake a 
new military readiness activity that may significantly affect the 
quality of the human environment; make a substantial change to an on-
going military readiness activity that is relevant to environmental 
concerns; learn of significant new circumstances or information 
relevant to the environmental concerns bearing on an on-going military 
readiness activity; or prepare or revise an INRMP covering an area used 
for military readiness activities. During the preparation of 
environmental impacts statements analyzing the military readiness 
activities' effects on migratory bird species, DOD consults with the 
Service as an agency with jurisdiction by law and special expertise. If 
the Department of Defense identifies any such significant adverse 
effects on migratory birds during the preparation of its NEPA analysis, 
this rule would require the Department of Defense to confer and 
cooperate with the Service to develop appropriate conservation measures 
to minimize or mitigate any such significant adverse effects. Upon 
finalization of this rule, the Department of Defense will continue to 
be responsible for ensuring that military readiness activities are 
implemented in accordance with all applicable statutes including NEPA 
and ESA.

Endangered Species Act Consideration

    Section 7(a)(1) of the Endangered Species Act (ESA) of 1973, as 
amended (16 U.S.C. 1531, et seq.), provides that, ``[t]he Secretary [of 
the Interior] shall review other programs administered by him and 
utilize such programs in furtherance of the purposes of this Act.'' 
Furthermore, section 7(a)(2) requires all Federal agencies to insure 
that any action authorized, funded, or carried out * * * is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of [critical] habitat. We have determined that this proposed rule to 
authorize take under the MBTA will have no effect on listed species. 
The proposed rule does not authorize take under the ESA. In addition, 
if a military training activity may affect a listed species, the 
Department of Defense must consult with the Service in accordance with 
section 7(a)(2) of the ESA.

Rule Authorization

    The proposed rule would authorize the Department of Defense to take 
migratory birds as an incidental result of military readiness 
activities. The Department of Defense must continue to apply for and 
receive an MBTA permit for scientific collecting, control of birds 
causing damage to Department of Defense property, or any other activity 
that is addressed by our existing permit regulations. These activities 
could not be conducted under the authority of this rule. If any 
Department of Defense activity falls within the scope of our existing 
regulations, we will consider, when processing the application, the 
specific take requested as well as any other take authorized by this 
proposed rule that may occur.
    Authorization of takes under this proposed rule would apply to take 
of migratory birds incidental to military readiness activities, 
including (a) all training and operations of the Armed Forces that 
relate to combat, and (b) the adequate and realistic testing of 
military equipment, vehicles, weapons, and sensors for proper operation 
and suitability for combat use. Authorization of take would not apply 
to: (a) Routine operation of installation operating support functions, 
such as administrative offices, military exchanges, commissaries, water 
treatment facilities, storage facilities, schools, housing, motor 
pools, laundries, morale, welfare, and recreation activities, shops, 
and mess halls; (b) operation of industrial activities; or (c) 
construction or demolition of facilities relating to these routine 
operations.
    The authorization provided by this rule is subject to the military 
service conducting an otherwise lawful military readiness activity in 
compliance with the provisions of the rule. To ensure the Service 
maintains the ability to manage and conserve the resource, the 
Secretary retains the authority to withdraw authorization of take with 
respect to any specific military readiness activity under certain 
circumstances.
    With respect to a Department of Defense military readiness activity 
likely to take migratory birds, the rule would authorize take provided 
the Department of Defense is in compliance with the following 
requirement:
    If ongoing or proposed activities are likely to result in a 
significant adverse effect on the sustainability of the population of a 
migratory bird species of concern, the Department of Defense must 
confer and cooperate with the Service to develop appropriate 
conservation measures to minimize or mitigate such significant adverse 
effects.
    We recognize that data on species of migratory birds may be 
limited. Furthermore, the migratory nature of most species complicates 
assessment of the expected effects of a proposed action or the effects 
of an ongoing action. We encourage the Department of Defense to develop 
information that will assist in guiding its decisions regarding 
migratory bird conservation, particularly in developing or amending 
INRMPs. This proposed rule would not require the Department of Defense 
to obtain new data to assess impacts of a proposed or an ongoing action 
on birds in order to comply with the provisions of this rule. Existing 
demographic, population, habitat association, species indicator, or 
ecological indicator data may be used to estimate the level of take and 
evaluate whether a proposed or an ongoing action is likely to have a 
significant adverse impact on a population.
    The Department of Defense will continue to be responsible for 
addressing its activities other than military readiness through an MOU

[[Page 31080]]

developed in accordance with Executive Order 13186.

When Would Take Not Be Authorized

    If a proposed or an ongoing action may threaten the sustainability 
of a population of a migratory bird species of concern, the Department 
of Defense must confer with the Service so we may recommend 
conservation measures. In certain circumstances, the Secretary must 
suspend the take authorization with respect to a particular military 
readiness activity; in other circumstances, the Secretary has the 
discretion to initiate a process that may result in withdrawal. We will 
make every effort to work with the Department of Defense in advance of 
a potential determination to withdraw take authorization in order to 
resolve migratory bird take concerns and avoid withdrawal. With respect 
to discretionary withdrawal, the rule provides an elevation process if 
the Secretary of Defense or his/her delegatee determines that 
protection of national security requires continuation of the activity.
    The Secretary will immediately suspend authorization for take if 
continued authorization would not be compatible with any one of the 
migratory bird treaties. Withdrawal of authorization may be proposed if 
the Secretary determines that failure to do so would result in a 
significant adverse effect on the sustainability of a population of a 
migratory bird species of concern and one or more of the following 
circumstances apply:
    (A) The Department of Defense has not implemented conservation 
measures that (i) are directly related to protecting the migratory bird 
species of concern affected by the proposed military readiness 
activity; (ii) would significantly reduce take of migratory birds 
species of concern affected by the military readiness activity, (iii) 
are economically feasible, and (iv) do not limit the effectiveness of 
military readiness activities.
    (B) The Department of Defense fails to conduct mutually agreed upon 
monitoring to determine the effects of a military readiness activity on 
the migratory bird species of concern and/or the efficacy of the 
conservation measures implemented by the Department of Defense.
    (C) The Department of Defense has not provided reasonable, 
appropriate, and readily available information that the Service has 
requested and that the Secretary determines is necessary to evaluate 
whether withdrawal of take authorization for the specific action is 
required or appropriate.
    The determination as to whether an immediate suspension of 
authorization is warranted (i.e., whether the action would be 
compatible with a migratory bird treaty), or withdrawal of an 
authorization is proposed will be made independent of each other. 
Regardless of whether the circumstances of paragraphs (A) through (C) 
above exist, there will be an immediate suspension if the Secretary 
determines, after seeking the views of the Secretary of Defense and 
after consulting with the Secretary of State, that, incidental take of 
migratory birds during a specific military readiness activity would not 
be compatible with one or more of the migratory bird treaties.
    Proposed withdrawal of authorization will be provided in writing to 
the Secretary of Defense including the basis for the determination. The 
notice will also specify any conservation measures or other measures 
that would, if the Department of Defense agrees to implement them, 
allow the Secretary to cancel the proposed withdrawal of authorization. 
Any take incidental to a military readiness activity subject to a 
proposed withdrawal of authorization would continue to be authorized by 
this regulation until the Secretary of the Interior, or his or her 
delegatee, makes a final determination on the withdrawal.
    The Secretary may, at his or her discretion, cancel a suspension or 
withdrawal of authorization at any time. A suspension may be cancelled 
in the event new information is provided that the proposed activity 
would be compatible with the migratory bird treaties. A proposed 
withdrawal may be cancelled if the Department of Defense modifies the 
proposed activity to alleviate significant adverse effects on the 
sustainability of a population of a migratory bird species of concern 
or the circumstances in paragraphs (A)--(C) above no longer exist. 
Cancellation of suspension or withdrawal of authorization becomes 
effective upon delivery of written notice from the Secretary to the 
Department of Defense.

Request for Reconsideration

    In order to ensure that the action of the Secretary in not 
authorizing take does not result in significant harm to the Nation, any 
proposal to withdraw authorization under paragraph 21.15(b)(2) of the 
proposed rule, will be reconsidered by the Secretary of the Interior or 
his or her delegatee who must be an official nominated by the President 
and confirmed by the Senate, if, within 30 days of the notification 
with respect to a military readiness activity, the Secretary of 
Defense, or his or her delegatee who also must be an official nominated 
by the President and confirmed by the Senate, determines that 
protection of the national security requires continuation of the 
action.

Scope of Authorization

    The take authorization provided by the rule would apply to the 
Department of Defense military readiness activities, including those 
implemented through the Department of Defense contractors and their 
agents.

Principles and Standards

    As discussed above, the only condition applicable to the 
authorization under this rule is that the Department of Defense confer 
and cooperate with the Service if the Department of Defense determines 
``that a proposed or an ongoing military readiness activity is likely 
to result in a significant adverse effect on the sustainability of a 
population of a migratory bird species of concern.'' To avoid this 
threshold from being reached, as well as to provide for migratory bird 
conservation, it is in the Department of Defense's best interest to 
address potential migratory bird impacts from military readiness 
activities by adopting the following principles and standards.
    To proactively address migratory bird conservation, the Department 
of Defense should engage in early planning and scoping and involve 
agencies with special expertise in the matters relating to the 
potential impacts of a proposed action. When a proposed action by the 
Department of Defense related to military readiness may result in the 
incidental take of birds, we encourage the Department of Defense to 
contact the Service so we can assist the Department of Defense in 
addressing potential adverse impacts on birds and mitigating those 
impacts, particularly those that may have a significant adverse effect 
on a population of a migratory bird species of concern.
    To identify species of concern, the Department of Defense should 
consult ``Birds of Conservation Concern''; priority migratory bird 
species documented in the comprehensive bird conservation plans; 
species or populations of waterfowl identified as high, or moderately 
high, continental priority in the North American Waterfowl Management 
Plan; listed threatened and endangered bird species in 50 CFR 17.11; 
and MBTA-listed game birds below desired population sizes.
    The Department of Defense should, in close coordination with the 
Service, develop a list of conservation measures designed to minimize 
and mitigate potential adverse impacts of authorized military readiness 
activities on affected

[[Page 31081]]

migratory bird species, with emphasis on species of concern. A 
cooperative approach initiated early in the project planning process 
will have the greatest potential for successfully reducing or 
eliminating adverse impacts. Our recommendations will emphasize 
avoidance, minimization, and rectifying adverse impacts. We encourage 
the Department of Defense to consider obvious avoidance measures at the 
outset of project planning, such as siting projects to avoid important 
nesting areas or to avoid collisions of birds with structures, or 
timing projects to avoid peak breeding activity. In addition, models 
such as the U.S. AHAS and BAM should be used to avoid bird activity 
when planning flight training and range use. These conservation 
measures should be considered for incorporation in new NEPA analyses, 
INRMPs, INRMP revisions, and base comprehensive or master plans, 
whenever adverse impacts to migratory birds may result from proposed 
military readiness activities.
    ``Conservation measures'' are project design or mitigation 
activities that are technically and economically reasonable, and 
minimize the take of migratory birds and adverse impacts while allowing 
for completion of an action in a timely manner. When appropriate, the 
Department of Defense should adopt existing industry guidelines 
supported by the Service and developed to avoid or minimize take of 
migratory birds. Monitoring is an important conservation measure or a 
component of conservation measures when it has the potential to produce 
data relevant to substantiating impacts, validating effectiveness of 
mitigation, or providing other pertinent information. We recognize that 
implementation of conservation measures will be subject to the 
availability of appropriations.
    The Department of Defense should promote the inclusion of 
comprehensive migratory bird management objectives from bird 
conservation plans into the Department of Defense planning documents. 
The bird conservation plans available either from the Service's 
Regional Offices or via the Internet include: North American Waterfowl 
Management Plan, PIF, and the U.S. Shorebird Conservation Plan. The 
North American Waterbird Conservation Plan, the newest planning effort, 
addresses conservation of seabirds, wading birds, terns, gulls, and 
some marsh birds, and their habitats. The Department of Defense should 
continue to work through the PIF program for incorporating bird habitat 
management efforts into INRMPs. The Department of Defense should also 
work collaboratively with partners to identify, protect, restore, and 
manage Important Bird Areas, Western Hemisphere Shorebird Reserve 
Network sites, and other significant bird sites that occur on 
Department of Defense lands.
    In accordance with the Authorization Act and the 2002 revised Sikes 
Act guidelines, the annual review of INRMPs by the Department of 
Defense, in cooperation with the Service and State fish and wildlife 
agencies, should include monitoring results of any migratory bird 
conservation measures.
    The Department of Defense should use the best available databases 
to determine which migratory bird species are likely to occur in the 
area of proposed military readiness activities. This would include 
species likely to occur in the project area during all phases of the 
project. Any species of concern should be specifically noted.
    The Department of Defense should use the best scientific data 
available to assess through the NEPA process, or other environmental 
requirements, the expected impact of proposed or ongoing military 
readiness activities on migratory bird species likely to occur in 
action areas. The Department of Defense should address impacts on 
species of concern more thoroughly and specifically, focusing on the 
effects of the proposed action on the sustainability of these 
populations. Special consideration should be given to priority 
habitats, such as important nesting areas, migration stop-over areas, 
and wintering habitats.
    The Department of Defense should adopt, to the maximum extent 
practicable, conservation measures designed to minimize and mitigate 
any adverse impacts of authorized military readiness activities on 
affected migratory bird species, with emphasis on species of concern. 
The term ``to the maximum extent practicable'' means without limiting 
the subject readiness activities in ways that compromise the 
effectiveness of those activities, and to the extent economically 
feasible. The Department of Defense should give special emphasis to 
addressing those activities that may negatively affect the 
sustainability of a population of a migratory bird species of concern.
    At the Department of Defense's request, the Service will provide 
technical assistance in identifying the migratory bird species and 
determining those likely to be taken as a result of the proposed 
action, assessing impacts of the action on migratory bird species, and 
identifying appropriate conservation measures to mitigate adverse 
impacts.

Is This Proposed Rule Consistent With the MBTA?

    Yes, section 704 and 712(2) of 16 U.S.C. provide us with broad 
authority to promulgate regulations allowing for the take of migratory 
birds when compatible with the terms of the migratory bird treaties. We 
find the take that would be authorized in this proposed rule is 
compatible with the terms of the treaties and consistent with the 
purposes of the treaties.
    The MBTA implements four treaties: a 1916 treaty with Great Britain 
on behalf of Canada that was substantially revised by a 1999 protocol; 
a 1936 treaty with Mexico; a 1972 treaty with Japan; and a 1978 treaty 
with the former Soviet Union. These international agreements recognize 
that migratory birds are important for a variety of purposes. They 
provide a food resource, insectivorous birds are useful to agriculture, 
they provide recreational benefits, and are useful for scientific and 
educational purposes, and are important for aesthetic, social, and 
spiritual purposes. Collectively, the treaties provide mechanisms for 
protecting the birds and their habitat, and include special emphasis on 
protecting those birds that are in danger of extinction.
    The Japanese and Soviet treaties have the more broadly worded 
prohibitions against take of migratory birds. At the same time, those 
treaties include broad exceptions to the take prohibition. The 
exceptions recognize a variety of purposes for which take may be 
authorized, including scientific, educational, and propagative 
purposes; for the protection of persons or property; and for hunting 
during open seasons. These treaties also authorize takings for 
``specific purposes not inconsistent with the objectives'' of the 
treaties.
    The take prohibitions in the 1916 treaty with Canada and the 1936 
treaty with Mexico have a narrower focus than the take prohibitions in 
the Japanese and Soviets treaties. Those treaties are more clearly 
directed at stopping the indiscriminate killing of migratory birds from 
hunting through the establishment of closed seasons. Likewise, the 
prohibitions in the 1999 Canadian protocol retain the structure of the 
earlier treaty using closed seasons to prohibit hunting.
    The take that is authorized by this proposed rule is compatible 
with the migratory bird treaties. The Japanese and Soviet treaties 
expressly authorize exceptions from the take prohibition for special 
purposes not inconsistent with the treaties. The take that would be

[[Page 31082]]

authorized here is for a special purpose not inconsistent with the 
treaties. The authorization allows take of birds only in narrow 
instances--take that results from military readiness activities. 
Furthermore, the proposed rule expressly requires the Department of 
Defense to develop conservation measures to minimize or mitigate 
impacts where such impacts may have a significant adverse effect on the 
sustainability of a population of a migratory bird species of concern. 
Moreover, the Secretary must suspend the take authorization if she 
concludes that a specific military readiness activity would not be 
compatible with the migratory bird treaties and may withdraw the 
authorization if she is unable to obtain from Department of Defense the 
information needed to assure compliance. In these circumstances, the 
take that would be authorized by this proposed rule is thus compatible 
with the terms of the treaties and consistent with the purposes of 
those treaties.
    The proposed rule's process of broad, automatic authorization 
subject to withdrawal is particularly appropriate to military readiness 
activities. First, we expect that military readiness activities will 
rarely, if ever, have the broad impact that would lead to a significant 
adverse effect on migratory bird species of concern, even absent the 
conservation measures that the Department of Defense undertakes 
voluntarily or pursuant to another statute, such as the ESA. Second, 
The Department of Defense, like other Federal agencies, has a special 
role in ensuring that the United States complies with its obligations 
under the four migratory bird treaties, as evidenced by the Migratory 
Bird Executive Order 13186 (January 10, 2001). Like other Federal 
agencies, the Department of Defense strives not only to lessen 
detrimental effects of the Department of Defense actions on migratory 
birds but to actively promote the conservation of the resource and 
integrate conservation principles and practices into agency programs. 
Numerous internal programs and collaborative ventures among Federal 
agencies and non-Federal partners have contributed significantly to 
avian conservation. These efforts are grounded in the tenets of 
stewardship inherent in our treaty obligations. Third, given the 
importance of military readiness to national security, it is especially 
important not to create a complex process that, while perhaps useful in 
other contexts, might impede the timely carrying-out of military 
readiness activities.

Why Does the Proposed Rule Apply Only to the Department of Defense?

    This proposed rule is being developed in accordance with the 
Authorization Act, which created an interim period, during which the 
prohibitions on incidental take of migratory birds would not apply to 
military readiness activities, and requiring the development of 
regulations authorizing the incidental take of migratory birds 
associated with military readiness activities. This proposed rule, if 
finalized, will carry out the mandates of the Authorization Act. This 
rule would authorize take resulting from otherwise lawful military 
readiness activities subject to certain limitations and subject to 
withdrawal of the authorization to ensure consistency with the 
provisions of the treaties.

Public Comments Invited

    We invite comments on this proposed rule from affected or concerned 
government agencies, the public, the scientific community, industry, 
environmental organizations, and any other interested party. Please 
reference ``RIN 1018-AI92'' at the top of your letter. We will consider 
all comments submitted to us by the deadline indicated above in DATES.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during normal 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. If you wish for us to withhold your name 
and/or address, you must state this prominently at the beginning of 
your comment. However, we will not consider anonymous comments. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.

Required Determinations

    Regulatory Planning and Review (E.O. 12866) In accordance with the 
criteria in Executive Order 12866, this rule is a significant 
regulatory action. OMB makes the final determination of significance 
under Executive Order 12866.
    a. Preliminary analysis indicates this rule will not have an annual 
economic effect of $100 million or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government. This 
rule is intended to benefit the Department of Defense, and all of its 
branches of the Armed Forces, by providing a mechanism to comply with 
the MBTA and the treaties. A full cost-benefit and economic analysis is 
not required.
    This proposed rule would not affect small businesses or other 
segments of the private sector. It would apply only to the Department 
of Defense. Thus any expenditure under this proposed rule would accrue 
only to the Department of Defense. Our current regulations allow us to 
permit take of migratory birds only for limited types of activities. 
This proposed rule would authorize take resulting from the Department 
of Defense military readiness activities, provided the Department of 
Defense complies with certain requirements to minimize or mitigate 
significant adverse effects on the sustainability of a population of a 
migratory bird species of concern.
    Preliminary analysis of the annual economic effect of this rule 
indicates that it would have de minimis effects for the following 
reasons. Without the rule, the Department of Defense could be subject 
to injunction by third parties via the APA for lack of authorization 
under the MBTA for incidental takes of migratory birds that might 
result from military readiness activities. This rule would enable the 
Department of Defense to alleviate costs associated with responding to 
litigation as well as costs associated with delays in military 
training. Furthermore, the rule is structured such that the Department 
of Defense is not required to apply for individual permits to authorize 
take for every individual military readiness activity. The take 
authorization is conveyed by the rule. This avoids potential costs 
associated with staff necessary to prepare and review applications for 
individual permits to authorize military readiness activities that may 
result in incidental take of migratory birds, and the costs that would 
be attendant to delay.
    The principal annual economic cost to the Department of Defense 
would likely be related to costs associated with developing and 
implementing conservation measures to minimize or mitigate impacts from 
military readiness activities that may have a significant adverse 
effect on the sustainability of a population of a migratory bird 
species of concern. However, we anticipate that this threshold of 
potential effects on the sustainability of a population has a low 
probability of occurring. The Department of Defense is already 
obligated to comply with a host of other environmental laws, such as 
NEPA, which requires them to assess impacts of their military readiness 
activities on

[[Page 31083]]

migratory birds, endangered and threatened species, and other wildlife. 
Most of the requirements of the proposed rule will be subsumed by these 
existing requirements.
    With the rule, the Department of Defense would have a regulatory 
mechanism to enable the Department of Defense to effectively implement 
otherwise lawful military readiness activities. Without the rule, the 
Department of Defense might not be able to complete certain military 
readiness activities that could result in the take of migratory birds 
pending issuance of an MBTA take permit or resolution of any lawsuits.
    b. This proposed rule would not create serious inconsistencies or 
otherwise interfere with the Department of Defense actions, including 
those other than military readiness. The Department of Defense must 
already comply with numerous environmental laws intended to encourage 
minimizing impacts to wildlife.
    c. This proposed rule would not materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. This rule does not have anything to do with such 
programs.
    d. This proposed rule raises novel legal or policy issues. This 
proposed rule raises a novel policy issue in that it implements a new 
area of our program to carry out the MBTA. Under 50 CFR 21.27, the 
Service has the authority to issue special purpose permits for take 
that is otherwise outside the scope of the standard form permits of 
section 21. Special purpose permits may be issued for proposed actions 
whereby take of migratory birds could result as an unintended 
consequence. However, the Service has previously issued such permits 
only in very limited circumstances.
    Regulatory Flexibility Act. For the reasons discussed under 
Regulatory Planning and Review above, I certify that this proposed rule 
would not have a significant economic effect on a substantial number of 
small entities as defined under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.). A final Regulatory Flexibility Analysis is not 
required. Accordingly, a Small Entity Compliance Guide is not required.
    Small Business Regulatory Enforcement Fairness Act. This proposed 
rule is not a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. This rule:
    a. Would not have an annual effect on the economy of $100 million 
or more.
    b. Would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    Unfunded Mandates Reform Act. In accordance with the Unfunded 
Mandates Reform Act (2 U.S.C. 1501, et seq.):
    a. This proposed rule would not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. We have determined and certified pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking would 
not impose a cost of $100 million or more in any given year on local or 
State government or private entities.
    b. This rule would not produce a Federal mandate of $100 million or 
greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.
    Takings. In accordance with Executive Order 12630, the rule does 
not have significant takings implications. A takings implication 
assessment is not required. The only effect of this rule would be to 
authorize incidental takes of migratory birds by the Department of 
Defense as a result of military readiness activities. This rule would 
not result in the physical occupancy of property, the physical invasion 
of property, or the regulatory taking of any property.
    Federalism. In accordance with Executive Order 13132, and based on 
the discussions in Regulatory Planning and Review above, this rule 
would not have significant Federalism effects. A Federalism assessment 
is not required. Due to the migratory nature of certain species of 
birds, and given the Federal Government's responsibility to implement 
the migratory bird treaties, Congress assigned the Federal Government 
responsibility over these species when it enacted the MBTA. This rule 
would not have a substantial direct effect on fiscal capacity, change 
the roles or responsibilities of Federal or State governments, or 
intrude on State policy or administration.
    Civil Justice Reform. In accordance with Executive Order 12988, the 
Office of the Solicitor has determined that this proposed rule would 
not unduly burden the judicial system and that it meets the 
requirements of sections 3(a) and 3(b)(2) of the Order. The intent of 
the rule is to relieve the Department of Defense and the judicial 
system from potential litigation resulting from potential take of 
migratory birds during military readiness activities. The Department of 
the Interior has certified to the Office of Management and Budget that 
this rule meets the applicable standards provided in Sections 3(a) and 
3(b)(2) of Executive Order 12988.
    Paperwork Reduction Act. This rule would not require any new 
information collections under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). Under the Paperwork Reduction Act, we do not need 
to seek Office of Management and Budget (OMB) approval to collect 
information from current Federal employees, military personnel, 
military reservists, and members of the National Guard in their 
professional capacities. Because this rule would newly enable us to 
collect information only from the Department of Defense employees in 
their professional capacity, we do not need to seek OMB approval under 
the Paperwork Reduction Act. In other cases, Federal agencies may not 
conduct or sponsor, and members of the public are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.
    National Environmental Policy Act. We have made a determination 
that this proposed rule is categorically excluded under the Department 
of the Interior's NEPA procedures in 516 Departmental Manual 2, 
Appendix 1.10. Appendix 1.10 applies to ``policies, directives, 
regulations, and guidelines of an administrative, financial, legal, and 
technical, or procedural nature; or the environmental effects of which 
are too broad, speculative or conjectural to lend themselves to 
meaningful analysis and will be subject later to the NEPA process, 
either collectively or case-by-case.''
    Department of Defense military readiness activities occur across a 
very broad geographic area covering a wide diversity of habitat types 
and potentially affecting a high diversity of migratory birds. In 
addition, the specific type of military readiness activity will vary 
significantly amongst the Armed Services. Because of the broad scope of 
activities, their locations, habitat types, and potential migratory 
birds present that may be affected by this proposed rule, it is not 
foreseeable or reasonable to anticipate all the possible locations 
where the Department of Defense may conduct military readiness 
activities or what the circumstances of the activities and the 
surrounding environment will be, thus it is premature to examine 
potential impacts of the proposed rule. Any environmental analysis of 
the proposed rule is determined to be too broad, speculative, and 
conjectural. A

[[Page 31084]]

copy of the Categorical Exclusion is available upon request at the 
address indicated in the ADDRESSES section of this proposed rule.
    In addition, we have made the determination that this proposed rule 
does not dictate extraordinary circumstances that would warrant 
preparation of an environment document in accordance with Departmental 
Manual, Part 516, 2.3. First, this proposed rule would only apply to 
military readiness activities that are otherwise authorized by the 
Secretary of Defense or the Secretary of the military department 
concerned. Second, we expect that military readiness activities will 
rarely, if ever, have the broad impact that would lead to a significant 
adverse effect on migratory bird species of concern, even absent the 
conservation measures that the Department of Defense undertakes 
voluntarily or pursuant to another statute. The Department of Defense 
also has an important role in ensuring that the United States complies 
with the four migratory bird treaties.
    However, upon finalization of this rule, the Department of Defense 
will continue to be responsible for ensuring military readiness 
activities are implemented in accordance with all applicable 
regulations including NEPA and ESA. In addition, authorization under 
this rule would require that if a proposed military readiness activity 
may result in a significant adverse impact on the sustainability of a 
population of a species of concern, the Department of Defense must 
confer and cooperate with the Service to develop appropriate measures 
to minimize or mitigate these effects and address them through their 
NEPA responsibilities.
    Government-to-Government Relationship with Tribes. In accordance 
with the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR 
22951), E.O. 13175, and 512 DM 2, we have evaluated possible effects on 
federally recognized Indian tribes and have determined that there are 
no effects. This rule applies only to military readiness activities 
carried out by the Department of Defense that take migratory birds. It 
would not interfere with the Tribes' ability to manage themselves or 
their funds.
    Energy Effects. On May 18, 2001, the President issued Executive 
Order 13211 on regulations that significantly affect energy supply, 
distribution, or use. This Executive Order requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. As this 
proposed rule is not expected to significantly affect energy supply, 
distribution, or use, this action is not a significant energy action 
and no Statement of Energy Effects is required.
    Clarity of Regulations. Executive Order 12866 requires each agency 
to write regulations that are easy to understand. We invite your 
comments on how to make this rule easier to understand, including 
answers to questions such as the following: (1) Are the requirements in 
the rule clearly stated? (2) Does the rule contain technical language 
or jargon that interferes with its clarity? (3) Does the format of the 
rule (grouping and order of sections, use of headings, paragraphing, 
etc.) aid or reduce its clarity? (4) Would the rule be easier to 
understand if it were divided into more (but shorter) sections? (5) Is 
the description of the rule in the Supplementary Information section of 
the preamble helpful in understanding the proposed rule? What else 
could we do to make the rule easier to understand?
    Send a copy of any comments about how we could make this rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240.

List of Subjects in 50 CFR Part 21

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

    For the reasons described in the preamble, we propose to amend 
title 50, chapter I, subchapter B of the CFR as follows:

PART 21--[AMENDED]

    1. Revise the authority citation for part 21 to read as follows:

    Authority: Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 704, 
712(2)); Pub. L. 107-314, 116 Stat. 2458 (16 U.S.C. 703 note).

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


Sec.  21.3  Definitions.

* * * * *
    Conservation measures, as used in Sec.  21.15, means project design 
or mitigation activities that are reasonable and feasible from a 
scientific, technological, and economic standpoint, and avoid or 
minimize the take of migratory birds, rectify, reduce, or eliminate 
adverse impacts over time, or compensate for such adverse impacts, 
while allowing for completion of the action in a timely manner. 
Monitoring is a conservation measure when it has the potential to 
produce data relevant to substantiating impacts, validating 
effectiveness of mitigation, or providing other pertinent information.
* * * * *
    Military readiness activity includes all training and operations of 
the Armed Forces that relate to combat, and the adequate and realistic 
testing of military equipment, vehicles, weapons, and sensors for 
proper operation and suitability for combat use. It includes activities 
carried out by the Department of Defense and their contractors. It does 
not include: routine operation of installation operating support 
functions, such as administrative offices, military exchanges, 
commissaries, water treatment facilities, storage facilities, schools, 
housing, motor pools, laundries, morale, welfare, and recreation 
activities, shops, and mess halls; operation of industrial activities; 
or construction or demolition of facilities relating to these routine 
operations.
    Population, as used in Sec.  21.15, refers to the population of a 
migratory bird species of concern, and means the number of individuals 
of a specific species within a particular Bird Conservation Region 
(BCR).
* * * * *
    Secretary of Defense means the Secretary of Defense or any other 
official in the Department of Defense, any of the military departments, 
or the Department of Homeland Security with respect to military 
readiness activities of the United States Coast Guard, who has been 
nominated by the President and confirmed by the Senate.
* * * * *
    Significant adverse effect on the sustainability of a population, 
as used in Sec.  21.15, means an effect that could result in a 
population no longer being maintained at a ``biologically viable level 
for the long term.'' A population is ``biologically viable for the long 
term'' when its ability to maintain its genetic diversity, to 
reproduce, and to perform its role or function in its native ecosystem 
are not irreversibly harmed.
    Species of concern refers to those species listed in the periodic 
report Birds of Conservation Concern published by the FWS Division of 
Migratory Bird Management (http://migratorybirds.fws.gov/reports/bcc2002.pdf); priority migratory bird species documented in the 
comprehensive bird conservation plans (North American Waterbird 
Conservation Plan http://www.waterbirdconservation.org), United States 
Shorebird Conservation Plan (http://shorebirdplan.fws.gov), Partners in 
Flight Bird Conservation Plans

[[Page 31085]]


(http://www.partnersinflight.org); species or populations of waterfowl 
identified as high, or moderately high, continental priority in the 
North American Waterfowl Management Plan; listed threatened and 
endangered bird species in 50 CFR 17.11; and Migratory Bird Treaty 
Act--listed game birds below desired population sizes (http://migratorybirds.fws.gov/reports/reports.html).
    3. Amend part 21, subpart B by adding a new Sec.  21.15 as follows:


Sec.  21.15  Authorization of take incidental to military readiness 
activities

    (a) Except to the extent authorization is withdrawn or suspended 
pursuant to paragraph (b) of this section, the Department of Defense 
may take migratory birds incidental to military readiness activities 
provided that, for those ongoing or proposed activities that are likely 
to result in a significant adverse effect on the sustainability of the 
population of a migratory bird species of concern, the Department of 
Defense must confer and cooperate with the Service to develop 
appropriate conservation measures to minimize or mitigate such 
significant adverse effects.
    (b) Withdrawal of take authorization.
    (1) If the Secretary determines, after seeking the views of the 
Secretary of Defense and consulting with the Secretary of State, that 
incidental take of migratory birds during a specific military readiness 
activity would not be compatible with one or more of the migratory bird 
treaties, the Secretary will suspend authorization of the take 
associated with that activity.
    (2) The Secretary may propose to withdraw, and 30 days thereafter 
may withdraw, the authorization for any take incidental to a specific 
military readiness activity if the Secretary determines that a proposed 
military readiness activity may result in a significant adverse effect 
on the sustainability of the population of a migratory bird species of 
concern and one or more of the following circumstances exists:
    (i) The Department of Defense has not implemented conservation 
measures that:
    (A) Are directly related to protecting the migratory bird species 
of concern affected by the proposed military readiness activity;
    (B) Would significantly reduce take of the migratory bird species 
of concern affected by the military readiness activity;
    (C) Are economically feasible; and
    (D) Do not limit the effectiveness of the military readiness 
activity;
    (ii) The Department of Defense fails to conduct mutually agreed 
upon monitoring to determine the effects of a military readiness 
activity on the migratory bird species of concern and/or the efficacy 
of the conservation measures implemented by the Department of Defense; 
or
    (iii) The Department of Defense has not provided reasonably 
available information that the Secretary has determined is necessary to 
evaluate whether withdrawal of take authorization for the specific 
military readiness activity is appropriate.
    (3) When the Secretary proposes to withdraw authorization with 
respect to a specific military readiness activity, the Secretary will 
first provide written notice to the Secretary of Defense. Any such 
notice will include the basis for the Secretary's determination that 
withdrawal is warranted in accordance with the criteria contained in 
paragraph (b)(2) of this section, and will identify any conservation 
measures or other measures that would, if implemented by the Department 
of Defense, permit the Secretary to cancel the proposed withdrawal of 
authorization.
    (4) Within 30 days of receipt of the notice specified in paragraph 
(b)(3) of this section, the Secretary of Defense may notify the 
Secretary in writing of the Department of Defense's objections, if any, 
to the proposed withdrawal, specifying the reasons therefore. Before 
acting to withdraw the take authorization for any specific military 
readiness activity, the Secretary will consider the objections raised 
by the Department of Defense. If the Secretary continues to believe 
that withdrawal is appropriate, he or she will provide written notice 
to the Secretary of Defense of the withdrawal and the rationale 
therefore, including a response to the Department of Defense's 
objections. If the Secretary of Defense continues to object to the 
withdrawal of authorization, the withdrawal will not become effective 
until the Secretary of Defense has had the opportunity to meet with the 
Secretary.
    (5) Any take incidental to a military readiness activity subject to 
a proposed withdrawal of authorization will continue to be authorized 
by this regulation until the Secretary makes a final determination on 
the withdrawal.
    (6) The Secretary may, at his or her discretion, cancel a 
suspension or withdrawal of authorization at any time. A suspension may 
be cancelled in the event new information is provided that the proposed 
activity would be compatible with the migratory bird treaties. A 
proposed withdrawal may be cancelled if the Department of Defense 
modifies the proposed activity to alleviate significant adverse effects 
on the sustainability of a population of a migratory bird species of 
concern or the circumstances in paragraphs (b)(2)(i) through (iii) of 
this section no longer exist. Cancellation of suspension or withdrawal 
of authorization becomes effective upon delivery of written notice from 
the Secretary to the Department of Defense.
    (7) The responsibilities of the Secretary under paragraph (b) of 
this section, may be fulfilled by his or her delegatee who must be an 
official nominated by the President and confirmed by the Senate.

    Dated: December 12, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
    Dated: January 8, 2004.

    Concurrence of:
Raymond DuBois,
Deputy Under Secretary of Defense (Installation & Environment).
    Editorial Note: This document was received by the Office of the 
Federal Register on May 17, 2004.

[FR Doc. 04-11411 Filed 5-28-04; 8:45 am]
BILLING CODE 4310-55-P