Migratory Bird Permits; Take of Migratory Birds by the Armed Forces, 8931-8950 [E7-3443]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 39 (Wednesday, February 28, 2007)]
[Rules and Regulations]
[Pages 8931-8950]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-3443]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

RIN 1018-AI92


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Migratory Bird Treaty Act (MBTA) prohibits the taking, 
killing, or possessing of migratory birds unless permitted by 
regulations promulgated by the Secretary of the Interior. While some 
courts have held that the MBTA does not apply to Federal agencies, in 
July 2000, the United States Court of Appeals for the District of 
Columbia Circuit ruled that the prohibitions of the MBTA do apply to 
Federal agencies, and that a Federal agency's taking and killing of 
migratory birds without a permit violated the MBTA. On March 13, 2002, 
the United States District Court for the District of Columbia ruled 
that military training exercises of the Department of the Navy that 
incidentally take migratory birds without a permit violate the MBTA.
    On December 2, 2002, the President signed the 2003 National Defense 
Authorization Act (Authorization Act). Section 315 of the Authorization 
Act provides that, not later than one year after its enactment, the 
Secretary of the Interior (Secretary) shall exercise his/her authority 
under Section 704(a) of the MBTA to prescribe regulations to exempt the 
Armed Forces for the

[[Page 8932]]

incidental taking of migratory birds during military readiness 
activities authorized by the Secretary of Defense or the Secretary of 
the military department concerned. The Authorization Act further 
requires the Secretary to promulgate such regulations with the 
concurrence of the Secretary of Defense. The Secretary has delegated 
this task to the U.S. Fish and Wildlife Service (Service).
    In passing the Authorization Act, Congress itself determined that 
allowing incidental take of migratory birds as a result of military 
readiness activities is consistent with the MBTA and the treaties. With 
this language, Congress clearly expressed its intention that the Armed 
Forces give appropriate consideration to the protection of migratory 
birds when planning and executing military readiness activities, but 
not at the expense of diminishing the effectiveness of such activities. 
This rule has been developed by the Service in coordination and 
cooperation with the Department of Defense and the Secretary of Defense 
concurs with the requirements herein.
    Current regulations authorize permits for take of migratory birds 
for activities such as scientific research, education, and depredation 
control (50 CFR parts 13, 21 and 22). However, these regulations do not 
expressly address the issuance of permits for incidental take. As 
directed by Section 315 of the Authorization Act, this rule authorizes 
such take, with limitations, that result from military readiness 
activities of the Armed Forces. If any of the Armed Forces determine 
that a proposed or an ongoing military readiness activity may result in 
a significant adverse effect on a population of a migratory bird 
species, then they must confer and cooperate with the Service to 
develop appropriate and reasonable conservation measures to minimize or 
mitigate identified significant adverse effects. The Secretary of the 
Interior, or his/her designee, will retain the power to withdraw or 
suspend the authorization for particular activities in appropriate 
circumstances.

DATES: This rule is effective March 30, 2007.

ADDRESSES: The final rule and other related documents can be downloaded 
at https://migratorybirds.fws.gov. The complete file for this rule is 
available for inspection, by appointment, during normal business hours 
at the Division of Migratory Bird Management, U.S. Fish and Wildlife 
Service, 4401 North Fairfax Drive, Arlington, Virginia 22203, telephone 
703-358-1714.

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

SUPPLEMENTARY INFORMATION:

Background

    Migratory birds are of great ecological and economic value and are 
an important international resource. They are a key ecological 
component of the environment, and they also provide immense enjoyment 
to millions of Americans who study, watch, feed, or hunt them. 
Recognizing their importance, the United States has been an active 
participant in the internationally coordinated management and 
conservation of migratory birds. The Migratory Bird Treaty Act (16 
U.S.C. 703-712) (MBTA) is the primary legislation in the United States 
established to conserve migratory birds. The U.S. Fish and Wildlife 
Service (Service), is the Federal agency within the United States 
responsible for administering and enforcing the statute.
    The MBTA, originally passed in 1918, implements the United States' 
commitment to four bilateral treaties, or conventions, for the 
protection of a shared migratory bird resource. The original treaty 
upon which the MBTA was based was the Convention for the Protection of 
Migratory Birds, signed with Great Britain in 1916 on behalf of Canada 
for the protection ``of the many species of birds that traverse certain 
parts of the United States and Canada in their annual migration.'' The 
MBTA was subsequently amended after treaties were signed with Mexico 
(1936, amended 1972, 1997), Japan (1972), and Russia (1976), and the 
amendment of the treaty with Canada (1995).
    While the terms of the treaties vary in their particulars, each 
treaty and subsequent amendments impose substantive obligations on the 
United States for the conservation of migratory birds and their 
habitats. For example, the Canada treaty, as amended, includes the 
following conservation principles:
     To manage migratory birds internationally;
     To ensure a variety of sustainable uses;
     To sustain healthy migratory bird populations for 
harvesting needs;
     To provide for, maintain, and protect habitat necessary 
for the conservation of migratory birds; and
     To restore depleted populations of migratory birds.
    The Canada and Mexico treaties protect selected families of birds, 
while the Japan and Russia treaties protect selected species of birds. 
All four treaties provide for closed seasons for hunting game birds. 
The list of the species protected by the MBTA appears in title 50, 
section 10.13, of the Code of Federal Regulations (50 CFR 10.13).
    Under the MBTA, it is unlawful ``by any means or in any manner, to 
pursue, hunt, take, capture, [or] kill'' any migratory birds except as 
permitted by regulation (16 U.S.C. 703). The Secretary is authorized 
and directed, from time to time, having due regard to the zones of 
temperature and to the distribution, abundance, economic value, 
breeding habits, and times and lines of migratory flight of such birds 
to adopt suitable regulations permitting and governing the take of 
migratory birds when determined to be compatible with the terms of the 
treaties (16 U.S.C. 704). Furthermore, the regulations at 50 CFR 21.11 
prohibit the take of migratory birds except under a valid permit or as 
permitted in the implementing regulations. The Service has defined 
``take'' in regulation to mean to ``pursue, hunt, shoot, wound, kill, 
trap, capture, or collect'' or to attempt these activities (50 CFR 
10.12).
    On July 18, 2000, the United States Court of Appeals for the 
District of Columbia ruled in Humane Society v. Glickman, 217 F.3d 882 
(D.C. Cir. 2000), that Federal agencies are subject to the take 
prohibitions of the MBTA. The United States had previously taken the 
position, and two other courts of appeals held or suggested, that the 
MBTA does not by its terms apply to Federal agencies. See Sierra Club 
v. Martin, 110 F.3d 1551, 1555 (11th Cir. 1997); Newton County Wildlife 
Ass'n v. U.S. Forest Service, 113 F.3d 110, 115 (8th Cir. 1997). 
Subsequently, on December 20, 2000, we issued Director's Order 131 to 
clarify the Service's position that, pursuant to Glickman, Federal 
agencies are subject to the permit requirements of the Service's 
existing regulations.
    Because the MBTA is a criminal statute and does not provide for 
citizen-suit enforcement, a private party who violates the MBTA is 
subject to investigation by the Service and/or prosecution by the 
Department of Justice. However, the Administrative Procedure Act (5 
U.S.C. 551 et seq.) (APA) allows private parties to file suit to 
prevent a Federal agency from taking ``final agency action'' that is 
``arbitrary, capricious, an abuse of discretion, or otherwise not in 
accordance with law'' (5 U.S.C. 706(2)(A)). If the prohibitions of the 
MBTA apply to Federal agencies, private parties could seek to enjoin 
Federal actions that take migratory birds, unless such take is 
authorized pursuant to regulations developed in

[[Page 8933]]

accordance with 16 U.S.C. 704, even when such Federal actions are 
necessary to fulfill Government responsibilities and even when the 
action poses no threat to the species at issue.
    In Center for Biological Diversity v. Pirie, a private party 
obtained an injunction prohibiting live-fire military training 
exercises of the Department of the Navy that had the effect of killing 
some migratory birds on the island of Farallon de Medinilla (FDM) in 
the Pacific Ocean. On March 13, 2002, the United States District Court 
for the District of Columbia ruled that the Navy activities at FDM 
resulting in a take of migratory birds without a permit from the 
Service violated the MBTA and the APA (191 F. Supp. 2d. 161 and 201 F. 
Supp. 2d 113). On May 1, 2002, after hearing argument on the issue of 
remedy, the Court entered a preliminary injunction ordering the Navy to 
apply for a permit from the Service to cover the activities, and 
preliminarily enjoined the training activities for 30 days. The United 
States Court of Appeals for the District of Columbia Circuit stayed the 
District Court's preliminary injunction pending appeal. The preliminary 
injunction, and associated stay, expired on May 31, 2002. A permanent 
injunction was issued by the District Court on June 3, 2002. The 
Circuit Court also stayed this injunction pending appeal on June 5, 
2002. On December 2, 2002, the President signed the Authorization Act 
creating an interim period during which the prohibitions on incidental 
take of migratory birds would not apply to military readiness 
activities. During the interim period, Congress also directed the 
Secretary of the Interior to develop regulations that exempt the Armed 
Forces from incidental take during authorized military readiness 
activities. The Department of Defense must concur with the regulations 
before they take effect. The Circuit Court subsequently dismissed the 
Pirie case as moot. In light of the Glickman and Pirie decisions, the 
authorization that this rule provides is essential to preserving the 
Service's role in determining what military readiness activities, if 
any, create an unacceptable risk to migratory bird resources and 
therefore must be modified or curtailed.
    The Armed Forces are responsible for protecting the United States 
from external threats. To provide for national security, they engage in 
military readiness activities. ``Military readiness activity'' is 
defined in the Authorization Act to include all training and operations 
of the Armed Forces that relate to combat, and the adequate and 
realistic testing of military equipment, vehicles, weapons, and sensors 
for proper operation and suitability for combat use. It includes 
activities carried out by contractors, when such contractors are 
performing a military readiness activity in association with the Armed 
Forces, including training troops on the operation of a new weapons 
system or testing the interoperability of new equipment with existing 
weapons systems. Military readiness does not include (a) the routine 
operation of installation operating support functions, such as: 
administrative offices; military exchanges; commissaries; water 
treatment facilities; storage facilities; schools; housing; motor 
pools; laundries; morale, welfare, and recreation activities; shops; 
and mess halls, (b) the operation of industrial activities, or (c) the 
construction or demolition of facilities listed above.
    Section 315 of the 2003 National Defense Authorization Act (Pub. L. 
107-314, 116 Stat. 2458, Dec. 2, 2002, reprinted in 16 U.S.C. 703 note) 
(hereinafter ``Authorization Act'') requires the Secretary of Defense, 
in consultation with the Secretary, to identify ways to minimize, 
mitigate, and monitor take of migratory birds during military readiness 
activities and requires the Secretary to prescribe, with the 
concurrence of the Secretary of Defense, a regulation that exempts 
military readiness activities from the MBTA's prohibitions against take 
of migratory birds. With the passage of the Authorization Act, Congress 
determined that such regulations are consistent with the MBTA and the 
underlying treaties by requiring the Secretary to promulgate such 
regulations. Furthermore, Congress clearly expressed its intention that 
the Armed Forces give appropriate consideration to the protection of 
migratory birds when planning and executing military readiness 
activities, but not at the expense of diminishing the effectiveness of 
such activities. Any diminishment in effectiveness could impair the 
ability of the Armed Forces to fulfill their national security mission. 
Diminishment could occur when military training or testing is modified 
in ways that do not allow the full range of training methods to be 
explored.
    This rule authorizes the Armed Forces to take migratory birds 
incidental to military readiness activities, subject to certain 
limitations and subject to withdrawal of the authorization to ensure 
consistency with the provisions of the migratory bird treaties. The 
authorization provided by this rule is necessary to ensure that the 
work of the Armed Forces in meeting their statutory responsibilities 
can go forward. This rule is also appropriate and necessary to ensure 
compliance with the treaties and to protect a vital resource in 
accordance with the Secretary's obligations under Section 704 of the 
MBTA as well as under Section 315 of the Authorization Act. This rule 
will continue to ensure conservation of migratory birds as the 
authorization it provides is dependent upon the Armed Forces conferring 
and cooperating with the Service to develop and implement conservation 
measures to minimize or mitigate significant adverse effects to 
migratory birds. This rule has been developed by the Service in 
coordination and cooperation with the Department of Defense, and the 
Secretary of Defense concurs with the requirements herein.

Executive Order 13186

    Migratory bird conservation relative to activities of the 
Department of Defense and the Coast Guard other than military readiness 
activities are addressed separately in Memoranda of Understanding 
(MOUs) developed in accordance with Executive Order 13186, 
Responsibilities of Federal Agencies to Protect Migratory Birds, signed 
January 10, 2001. The MOU with the Department of Defense was published 
in the Federal Register August 30, 2006 (Volume 71, Number 168). Upon 
completion of the MOUs with additional Federal agencies, and in keeping 
with the intent of the Executive Order for Federal agencies to promote 
the conservation of migratory bird populations, the Service may issue 
incidental take authorization to address specific actions identified in 
the MOUs.

Responses to Public Comment

    On June 2, 2004, we published in the Federal Register (69 FR 31074) 
a proposed rule to authorize the take of migratory birds, with 
limitations, that result from Department of Defense military readiness 
activities. We solicited public comment on the proposed rule for 60 
days ending on August 2, 2004.
    By this date, we received 573 comments in response to the proposed 
rule; 24 were from identified organizations or agencies. The following 
text discusses the substantive comments received and provides our 
response to those comments. Additionally, it provides an explanation of 
significant changes from the proposed rule. We do not specifically 
address the comments that simply opposed the rule unless they included 
recommendations for revisions. Comments are organized by topic.
    To more closely track the language in the Authorization Act and to 
clarify that the rule applies to the incidental taking

[[Page 8934]]

of a migratory bird by a member of the Armed Forces during a military 
readiness activity, we have replaced the ``Department of Defense'' with 
``Armed Forces,'' where applicable.

Violation of the Migratory Bird Treaty Act and the Four Migratory Bird 
Treaties

    Comment: The statement that the rule allows take only in ``narrow 
instances'' of military readiness activities goes against the spirit 
and letter of the MBTA, which forbids the take of migratory birds and 
thus abrogates the MBTA.
    Service Response: The MBTA regulates, rather than absolutely 
forbids, take of migratory birds. The Secretary is authorized and 
directed, from time to time, having due regard to the zones of 
temperature and to the distribution, abundance, economic value, 
breeding habits, and times and lines of migratory flight of such birds 
to adopt suitable regulations permitting and governing the take of 
migratory birds when determined to be compatible with the terms of the 
treaties (16 U.S.C. 704). In the Authorization Act, Congress directed 
the Secretary to utilize his/her authority to permit incidental take 
for military readiness activities. Furthermore, Congress itself by 
passing the Authorization Act determined that allowing incidental take 
of migratory birds as a result of military readiness activities is 
consistent with the MBTA and the treaties. Thus, this rule does not 
abrogate the MBTA.
    Comment: Citing broad take authorization language in the current 
text of the treaty with Canada, concern was expressed regarding the 
analysis in the proposed rule that the treaty with Canada has a 
narrower focus than the treaties with Japan and Russia.
    Service Response: We agree with the commenter that the Canada 
treaty, as amended by the 1995 Protocol, now includes broad exception 
language similar to that in the Japan and Russia treaties. We have 
expanded upon and added additional clarification in the section ``Is 
the rule consistent with the MBTA?'' discussing compatibility of this 
rule with the MBTA and the four treaties.

Authorization of Take Under Sec.  21.15(a)

    Comment: The Department of Defense should avoid take of migratory 
birds by avoiding areas inhabited by migratory birds including 
restricting construction and active use of airfields in the vicinity of 
wildlife refuges, prohibiting military operations over wildlife refuges 
or sensitive migratory bird habitat areas, and avoiding areas where 
migratory birds nest, breed, rest, and feed.
    Service Response: Military lands often support a diversity of 
habitats and their associated species, including migratory birds; thus 
it would be difficult for the Armed Forces to completely avoid areas 
inhabited by birds or other wildlife species. When determining the 
location for a new installation, such as an airfield, the applicable 
Armed Force must prepare environmental documentation in accordance with 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.) (NEPA) 
that gives due consideration to the impacts of the proposal on the 
environment, including migratory birds. With respect to wildlife 
refuges, Congress in the 2000 amendments to the National Wildlife 
Refuge System Administration Act noted specifically that the provisions 
of the Act relating to determinations of the compatibility of a use 
would not apply to overflights above a refuge (Pub. L. 106-580; 
December 29, 2000). Nevertheless, as noted in this rule, the Armed 
Forces have made significant investments in acquiring data on the 
distribution of bird populations and identification of migration 
routes, as well as the use of military lands for breeding, stopover 
sites, and over-wintering areas, to protect and conserve these areas. 
The Armed Forces actively utilize radar ornithology to plan new 
construction and testing and training operations in areas and times of 
least constraints. The Armed Forces also have a strong interest in 
avoiding bird/aircraft conflicts and use this type of information to 
assist range planners in selecting training times when bird activity is 
low.
    In accordance with the Sikes Act (included in Pub. L. 105-85), the 
Department of Defense must provide for the conservation and 
rehabilitation of natural resources on military installations. Thus, 
potential conflicts with natural resources, including migratory birds, 
should be addressed in Integrated Resource Management Plans (INRMP), 
where applicable. Although the Sikes Act does not apply to the Coast 
Guard, they are also starting to encourage applicable bases to develop 
INRMPs.
    Comment: Provision should be included that the Department of 
Defense cannot ignore scientific evidence and proceed on a course of 
action where take is inevitable.
    Service Response: None of the four treaties strictly prohibit the 
taking of migratory birds without exception. Furthermore, the Service 
acknowledges that regardless of the entity implementing an activity, 
some birds may be killed even if all reasonable conservation measures 
are implemented. With the passage of the Authorization Act, Congress 
directed the Secretary to authorize incidental take by the Armed 
Forces. Thus, they will be allowed to take migratory birds as a result 
of military readiness activities, consistent with this rule. This rule, 
however, will continue to ensure conservation of migratory birds as it 
requires the Armed Forces to confer and cooperate with the Service to 
develop and implement conservation measures to minimize or mitigate 
adverse effects to migratory birds when scientific evidence indicates 
an action may result in a significant adverse effect on a population of 
a migratory bird species.
    As stated in the Principles and Standards section of this rule, the 
Armed Forces will use the best scientific data available to assess 
through the NEPA process, or other environmental requirements, the 
expected impact of proposed or ongoing military readiness activities on 
migratory bird species likely to occur in the action areas.
    Comment: The Department of Defense should not have the sole 
authority/responsibility to determine whether the survival of the 
species is threatened, and only then initiate consultation with the 
Service.
    Service Response: We assume that, despite the commenter's use of 
the term ``consultation'', this is a reference to the requirement under 
Sec.  21.15(a)(1) to ``confer and cooperate,'' and not to the 
requirement of ``consultation'' under section 7 of the Endangered 
Species Act (ESA), 16 U.S.C. 1536. Section 21.15(a)(1) does condition 
the requirement to ``confer and cooperate'' on a determination by the 
Armed Forces that a military readiness activity may result in a 
significant adverse effect on a population of a migratory birds 
species. However, we expect that the Armed Forces will notify the 
Service of any activity that even arguably triggers this requirement. 
In addition, putting aside the requirements of this regulation, the 
Armed Forces would, as a matter of course share such information in a 
number of circumstances.
    First, NEPA, and its regulations at 40 CFR 1500-1508, require that 
Federal agencies prepare environmental impact statements for ``major 
Federal actions significantly affecting the quality of the human 
environment.'' These statements must include a detailed analysis of the 
impacts of an agency's proposed action and any reasonable alternatives 
to that proposal. NEPA also requires the responsible Federal official 
to ``consult

[[Page 8935]]

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

[[Page 8936]]

``Armed Forces'' includes the Coast Guard.
    Comment: In order for potential impacts of the implementation of 
this rule to be effectively analyzed, the rule should not be 
categorically excluded. A full NEPA analysis should be conducted for 
the rule.
    Service Response: Because of the broad spectrum of activities, 
activity locations, habitat types, and migratory birds potentially 
present that may be affected by this rule, it is not foreseeable or 
reasonable to anticipate all the potential impacts in a meaningful 
manner of military readiness activities conducted by the Armed Forces 
on the affected environment; thus it is premature to examine potential 
impacts of the rule in accordance with NEPA. We have determined that 
any environmental analysis of the rule would be too broad, speculative, 
and conjectural.
    Part 516 Departmental Manual 2.3 A (National Environmental Policy 
Act Part 1508.4) allows an agency (Bureau) in the Department of 
Interior to determine if an action is categorically excluded from NEPA. 
We have made the determination that the rule is categorically excluded 
in accordance with 516 Departmental Manual 2, Appendix 1.10. This 
determination does not diminish the responsibility of the Armed Forces 
to comply with NEPA. Whenever the Armed Forces propose to undertake new 
military readiness activities or to adopt a new, or materially revised, 
INRMP where migratory bird species may be affected, the Armed Forces 
invite the Service to comment as an agency with ``jurisdiction by law 
or special expertise'' upon their NEPA analysis. In addition, if the 
potential for significant effects on migratory birds makes it 
appropriate, the Armed Forces may invite the Service to participate as 
a cooperating agency in the preparation of their NEPA analysis. 
Moreover, authorization under this rule requires that if a proposed 
military readiness activity may result in a significant adverse impact 
on a population of migratory bird species, the Armed Forces must confer 
and cooperate with the Service to develop and implement appropriate 
measures to minimize or mitigate these effects. The environmental 
consequences of the proposed military readiness activity, as well as 
the potential of any such measures to reduce the adverse impacts of the 
proposed activity, would be covered in NEPA documentation prepared for 
the proposed action.
    Comment: Section 21.15(a) of the proposed regulation is unclear as 
to who is to determine that ongoing or proposed activities are likely 
to result in significant adverse effects.
    Service Response: We have revised Sec.  21.15(a) to clarify that 
this responsibility initially lies with the action proponent, i.e., the 
Armed Forces. Just as the Armed Forces make the initial determination 
that consultation is required under similar statutes, such as the 
Endangered Species Act (16 U.S.C. 1531 et seq.) (ESA) or the National 
Historic Preservation Act (16 U.S.C. 470), the action proponent will 
consider the likely effects of its proposed action and whether such 
effects require that it confer with the Service to develop and 
implement appropriate conservation measures to minimize or mitigate 
potential significant adverse effects. Where significant adverse 
impacts are likely, existing requirements under NEPA for federal 
agencies to prepare environmental documentation will ensure that both 
the public and the Service have an opportunity to review a proposed 
action and the Armed Force's determination with respect to migratory 
birds.
    The Service and State wildlife agencies (and the general public if 
plan revisions are proposed) also have an opportunity to review the 
Department of Defense's management of installation natural resources, 
including the impacts of land use on such resources, during the 
quintennial review of INRMPs for Department of Defense lands. 
Consultation under the Endangered Species Act offers yet another 
opportunity for the Service to provide input on the potential effects 
of a proposed military readiness activity on federally listed migratory 
birds.
    Comment: The document uses both the terms ``may'' affect migratory 
birds and ``likely'' to affect migratory birds. ``May'' should be used 
to be consistent with the NEPA threshold for impacts on the 
environment.
    Service Response: The Service has intentionally established 
different standards for when the Armed Forces are required to confer 
with the Service and for when we may propose withdrawal of 
authorization. We have established a broad standard for triggering when 
the Armed Forces must notify the Service of potential adverse effects 
on migratory birds. We agree that requiring the Armed Forces to confer 
with the Service when applicable activities ``may'' result in a 
significant adverse effect is consistent with the analysis threshold 
utilized in NEPA. The Secretary determined that the more restrictive 
threshold of suspending or withdrawing authorization was warranted when 
a military readiness activity likely would not be compatible with one 
or more of the treaties or is likely to result in a significant adverse 
effect on a migratory bird population.

Withdrawal of Take Authorization Sec.  21.15(b)

    Comment: The Department of Defense is given too much decision power 
in the rule. Concern was expressed that the final decision regarding 
whether a military readiness activity is authorized or not is made by 
political appointees rather than unbiased career employees.
    Service Response: Our political system is based upon a structure 
whereby policy decisions are made by political appointees rather than 
career employees. To address what may be perceived as too much power by 
the Armed Forces, it is the Secretary of the Interior who has, and 
retains, the final determination regarding whether an activity is 
authorized under the MBTA, not the Secretary of Defense.
    Comment: The rule should require sufficient monitoring to detect 
significant impacts and provide for diligent oversight by the 
Department of the Interior to head off problems well before jeopardy is 
near and withdrawal of authorization is suspended or proposed to be 
withdrawn.
    Service Response: We concur that monitoring can play a key role in 
providing valuable data needed to evaluate potential impacts of 
activities, inform conservation decisions, and evaluate effectiveness 
of conservation measures. For monitoring to be relevant, it should 
focus on specific objectives, desired outcomes, key hypotheses, and 
conservation measures. As stated in Sec.  21.15(b)(2)(ii) of the rule, 
in instances where it is appropriate, the Armed Forces are required to 
``conduct mutually agreed upon monitoring to determine the effects of 
military readiness activity on migratory bird species and/or the 
efficacy of the conservation measures implemented by the Armed 
Forces.'' This rule also states that the Armed Forces will consult with 
the Service to identify techniques and protocols to monitor impacts of 
military readiness activities. We have also added additional text 
clarifying the monitoring requirements of the Armed Forces.
    Comment: The procedure for withdrawal of the authority is so 
cumbersome and subject to so many exclusions as to make the withdrawal 
procedure non-functional.
    Service Response: We have clarified the procedures for when the 
Secretary may propose withdrawing authorization in Sec.  21.15(b)(2), 
(4) and (5).
    Comment: The statutory language of the Defense Authorization Act 
says

[[Page 8937]]

nothing about requiring input from the State Department prior to 
suspending authorization. Thus, the rule needlessly goes beyond its 
statutory authority.
    Service response: In accordance with the MBTA (16 U.S.C. 704), the 
Secretary of the Interior has the authority to ``determine when, and to 
what extent, if at all, and by what means, it is compatible with the 
terms of the conventions to allow hunting, taking, capture, killing * * 
* and to adopt suitable regulations permitting and governing the 
same.'' The Defense Authorization Act does not limit that authority. 
Requiring the input of the State Department is within the standards of 
Sec.  704.
    Comment: The provision that the Secretary must seek the view of the 
Department of Defense prior to suspending authorization due to a 
violation with any of the treaties it affects permits the Department of 
Defense to itself determine its compliance with the migratory bird 
treaties. The statutory language of the Defense Authorization Act did 
not address this in any way.
    Service Response: Section 21.15(b)(1) of this regulation provides 
that the Secretary retains the discretion to make the ultimate 
determination that incidental take of migratory birds during a specific 
military readiness activity would be incompatible with the treaties. 
Although the Defense Authorization Act required the Secretary to 
promulgate a regulation, it did not mandate the specific text or all of 
the conditions in this regulation. This regulation is consistent with 
the Defense Authorization Act as well as with 16 U.S.C. 704. Moreover, 
seeking the views of the Armed Forces is appropriate given the possible 
impacts that suspension of the take authorization could have on 
national security. Similarly, consulting with the State Department on 
issues of treaty interpretation is appropriate because of the State 
Department's expertise and authority in this area as well as its 
responsibility for maintaining the relationship of the United States 
with its treaty partners.
    Comment: The Secretary should not have unilateral power to suspend 
or withdraw take authorization as the Defense Authorization Act states 
the Secretary must exercise authority with the concurrence of the 
Secretary of Defense.
    Service Response: In accordance with Sec.  315(d)(1) and (2) of the 
Authorization Act, the regulation ``to exempt the Armed Forces for the 
incidental take of migratory birds during military readiness 
activities'' shall be developed by the Secretary of the Interior with 
the concurrence of the Secretary of Defense. However, the Defense 
Authorization Act does not restrict or limit our authority in 16 U.S.C. 
704 and 712 relative to administering and enforcing the MBTA and 
complying with the four migratory bird treaties.

Definitions Sec.  21.3

    Comment: Incidental take is not defined in the rule or the Defense 
Authorization Act. Concern was expressed that the Department of Defense 
being authorized to take migratory birds incidental to military 
readiness activities without ``incidental'' being defined will result 
in the Department of Defense reading this as the ability to actively 
kill migratory birds and destroy their habitat in anticipation of the 
potential for such problems.
    Service Response: Current regulations authorize permits for take of 
migratory birds for activities such as scientific research, education, 
and depredation control (50 CFR parts 13, 21 and 22). However, these 
regulations do not expressly address the issuance of permits for 
incidental take. ``Incidental take of migratory birds'' is not defined 
under the MBTA or in any subsequent regulation, and the Service does 
not anticipate having a regulatory definition for ``incidental take'' 
in the short term. Neither the MBTA, the Defense Authorization Act, nor 
this rule authorize the take of migratory birds simply in anticipation 
of the potential for future problems, i.e., removing the potential 
source of problems before any conflicts may arise with military 
readiness activities.
    Comment: Blanket exemption for any and all military readiness 
activities should not be authorized. In particular, those activities 
that involve acquisition of new land and construction of facilities in 
sensitive migratory bird habitat areas should not be authorized. 
Authorization to take birds should only include those types of 
activities that are too time or mission-sensitive for thorough 
evaluation, and where incidental take is unavoidable.
    Service Response: As defined in the 2003 Defense Authorization Act, 
military readiness activities include all training and operations of 
the Armed Forces that relate to combat, and the adequate and realistic 
testing of military equipment, vehicles, weapons, and sensors for 
proper operation and suitability for combat use. Military readiness 
does not include (a) routine operation of installation operating 
support functions, such as: administrative offices; military exchanges; 
commissaries; water treatment facilities; storage facilities; schools; 
housing; motor pools; laundries; morale, welfare, and recreation 
activities; shops; and mess halls, (b) operation of industrial 
activities, or (c) construction or demolition of facilities listed 
above.
    Acquisition of lands by the Armed Forces is not covered by this 
authorization as the acquisition itself does not take birds even when 
the land is being acquired for implementing future military readiness 
activities. In accordance with NEPA, environmental analysis of any 
major Federal agency action, which may include land acquisition and 
future proposed activities on these lands, must be addressed prior to 
the action occurring. Likewise, construction of facilities in sensitive 
migratory bird habitat would be addressed through NEPA.
    Comment: The rule covers all military branches of service and 
includes contractors and agents. These should be clearly delineated in 
order to minimize the number of exempt entities.
    Service Response: The rule applies to contractors only when such 
contractors are performing a military readiness activity in association 
with the Armed Forces--i.e., the contractors are performing a federal 
function. For example, a contractor training troops on the operation of 
a new weapons system or testing its interoperability with existing 
weapons systems would be covered. The regulation does not cover routine 
contractor testing performed at an industrial activity that is 
privately owned and operated.
    Comment: The Defense Authorization Act does not limit applicability 
of minimization and mitigation measures to just ``species of concern'' 
but applies to all ``affected species of migratory birds.'' In 
addition, concern was expressed that this level of threshold could 
result in avoidable impacts to species that are not included in the 
``species of concern lists'' but are nevertheless valuable public 
resources.
    Service Response: We agree that the Defense Authorization Act is 
not specifically limited to species of concern, nor did we envision 
that the rule prevents the Armed Forces from addressing adverse impacts 
on all affected species of migratory birds through the NEPA process, 
including those that are locally endemic or otherwise have limited 
distribution within a State. The rule has been modified by requiring 
the Armed Forces to confer with the Service when they determine an 
action may result in a significant adverse effect on the

[[Page 8938]]

population of any migratory bird species.
    Comment: Use of population status at the Bird Conservation Region 
(BCR) level as a criterion for action could reduce consideration of 
locally important bird resources, concentrations of birds and special 
habitats, and populations that do not coincide closely with BCRs.
    Service Response: We have revised the definition of population so 
that it is not based upon species distribution or occurrence within a 
Bird Conservation Region and thus eliminates the concerns expressed 
above. As used in the rule, a population is defined as ``a group of 
distinct, coexisting (conspecific) individuals of a single species, 
whose breeding site fidelity, migration routes, and wintering areas are 
temporally and spatially stable, sufficiently distinct geographically 
(at some time of the year), and adequately described so that the 
population can be effectively monitored to discern changes in its 
status.''
    What constitutes a population for the purposes of determining 
potential effects of military readiness activities will be 
scientifically based. A population could be defined as one that occurs 
spatially across a geographically broad area, such as the Western 
Atlantic red knot population that migrates along the Atlantic seaboard, 
to a more geographically limited species, such as breeding population 
of Bicknell's thrush whose breeding range is limited to mountain tops 
in the northeastern U.S. and southeastern Canada. When requested, the 
Service will provide technical assistance to the Armed Forces in 
identifying specific populations of migratory bird species that may be 
affected by a military readiness activity.
    Comment: The definition of conservation measure does not adequately 
recognize international treaty obligations and the right of the 
Secretary of the Interior to withdraw take authorization should the 
treaties be violated. In the definitions, after the words ``while 
allowing for completion of the action in a timely manner,'' insert ``if 
such action would be consistent with the international treaties 
underlying the MBTA.''
    Service Response: If conservation measures implemented by the Armed 
Forces in accordance with the rule are not sufficient to render the 
action compliant with the treaties, the Secretary will suspend the 
authorization. Failure to implement conservation measures is not the 
sole criterion for proposing withdrawal.
    Comment: ``Conservation measures'' is defined to include monitoring 
when it has the potential to produce data relevant to substantiating 
impacts, validating effectiveness of mitigation, or providing other 
pertinent information. However, in the absence of a monitoring 
requirement, this provision is unworkable.
    Service Response: Monitoring is required in Sec.  21.15(b)(ii) of 
the rule. This section indicates that the Department of Defense's 
failure ``to conduct mutually agreed upon monitoring to determine the 
effects of military readiness activity on migratory bird species and/or 
the efficacy of the conservation measures implemented by the Department 
of Defense'' is potential cause for the Secretary to propose 
withdrawing authorization. However, as indicated in the response below, 
reference to monitoring has been removed from the definition of 
conservation measures.
    Comment: Monitoring should not be considered a conservation 
measure, rather it should be conducted separately and apart from any 
necessary and reasonable mitigation actions.
    Service Response: Although monitoring can play a key role in the 
continued growth of bird conservation by providing the information 
needed to inform conservation decisions and evaluate their 
effectiveness, we have removed it from the definition of conservation 
measures.
    Comment: The threshold of ``significant adverse effect on the 
sustainability of a population'' is too high.
    Service Response: The threshold for when the Armed Forces will be 
required to confer with the Service and implement appropriate 
conservation measures has been modified to when a ``significant adverse 
effect on a population of migratory bird species'' may result from an 
ongoing or proposed military readiness activity. The definition of 
significant adverse effect has also been accordingly revised in the 
rule.
    Comment: The rule has a different standard than what was indicated 
by Congress in the Defense Authorization Act. The Act indicates 
measures are to be identified that minimize and mitigate ``any adverse 
impacts'' not just ``significant adverse effects.'' The Service is 
inserting thresholds of both likelihood and significance that are not 
any way implied by the statute.
    Service Response: As indicated in Section 315(b) of the 
Authorization Act, the identification of measures to minimize and 
mitigate any adverse impacts of authorized military readiness 
activities pertains to the period of interim authority. The standard 
for authorization of take is established by the Secretary's authority 
under Sec.  704 of the MBTA, whereby in exercising this authority he/
she may prescribe regulations that exempt the Armed Forces for the 
incidental taking of migratory birds during military readiness 
activities. As indicated in the rule, the Secretary established 
thresholds for granting authority to incidentally take migratory birds. 
For those military readiness activities that would not have a 
significant adverse effect on migratory bird species populations take 
is authorized without conferring with the Service, subject to the 
withdrawal provision of Sec.  21.15(b)(1). If a proposed or ongoing 
activity may result in a significant adverse effect, the Armed Forces 
must confer and cooperate with the Service. Take authorization would be 
suspended or withdrawn only when a military readiness activity likely 
would not be compatible with one or more of the treaties or is likely 
to result in a significant adverse effect on a migratory bird 
population.
    Comment: Conservation measures that are project designs or 
mitigation activities should be changed from those that are 
``reasonable and feasible'' to ``reasonable and necessary.'' This will 
result in a conservation measure that is appropriate to its purpose and 
essential to conservation.
    Service Response: This revision has been made to the definition of 
conservation measures.
    Comment: ``Conservation measures'' fails to place any restrictions 
or requirements on the amount of time that the Department of Defense 
would be given to apply the mitigation actions. The phrase ``over 
time'' implicitly grants the Department of Defense the ability to 
ignore the need for immediate action to counter adverse impacts.
    Service Response: ``Over time'' was deleted from the definition.

Supplementary Information Section

    Many comments were received on the Supplementary section of the 
proposed rule which did not pertain to any recommended revisions to 
Sec.  21.15. These were taken into consideration in the final rule.
    Comment: Ambiguous terms such as ``should,'' ``encourage,'' 
``anticipates,'' etc., relative to Department of Defense activities 
contributing towards the conservation of migratory birds should be 
replaced with stronger terms such as ``require.''
    Service Response: The SUPPLEMENTARY INFORMATION text has no

[[Page 8939]]

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

[[Page 8940]]

    Service Response: The Armed Forces will be addressing ``take'' in a 
variety of ways. As stated above, through the NEPA process, the 
environmental consequences of their proposed military readiness 
activities will be evaluated, as well as any measures to reduce take of 
migratory birds. In addition, the INRMPs currently incorporate 
conservation measures to address migratory bird conservation. The 
Service will continue to work with the Armed Forces to develop 
additional measures in the future.
    Comment: Nowhere does the rule mention how and when the Department 
of Defense will assess current, ongoing activities for which NEPA 
compliance is complete. The rule should be amended to require, within a 
specified time period of 90-120 days, a report by the Department of 
Defense to the Secretary on the impacts of their current military 
readiness activities on migratory birds.
    Service Response: As a preliminary matter, it is important to note 
that where NEPA compliance has been completed, that compliance should 
have included consideration of the impacts on migratory birds. Since 
the enactment of NEPA, the Service has been notified of, and provided 
the opportunity to comment on, proposed military readiness activities 
that have the potential for significant impacts on the environment, 
including significant impacts on migratory birds. Nevertheless, it is 
possible that ongoing military readiness activities might in the future 
be determined to meet the threshold for the requirement under Sec.  
21.15(a)(1) to ``confer and cooperate.'' There are at least three 
mechanisms in place that require the Armed Forces to address 
environment impacts of ongoing activities for which NEPA is complete; 
supplementary statements under NEPA, INRMP reviews, and the monitoring 
requirements in the rule.
    In accordance with NEPA Part 1502.9, an agency shall prepare a 
supplement to either a draft or a final environmental impact statement 
whenever: (1) The agency makes substantial changes in the proposed 
action that are relevant to environmental concerns; or (2) the agency 
learns of significant new circumstances or information relevant to 
environmental concerns and bearing on the proposed action or its 
impacts. This rule relies on the Armed Forces to use the NEPA process 
to determine whether an ongoing military readiness activity may result 
in a significant adverse effect on a population of a migratory bird 
species.
    The Sikes Act (16 U.S.C. 670a-670o), enacted in 1960, has required 
cooperation among the Department of Defense, the Service, and State 
wildlife agencies. The 1997 amendments to the Sikes Act require the 
development of INRMPs that reflect the mutual agreement of the 
Department of Defense, the Service, and the appropriate State wildlife 
agency. The Sikes Act provides the Service, as well as the public, an 
opportunity to review natural resources management on military lands, 
including any potential effects on migratory birds or their habitat. 
NEPA documentation is prepared to support new