2011-13807. Migratory Birds; Take of Migratory Birds by the Armed Forces

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice.

SUMMARY:

The 2003 National Defense Authorization Act (Authorization Act) provided interim authority to members of the Armed Forces to incidentally take migratory birds during approved military readiness activities without violating the Migratory Bird Treaty Act (MBTA). The Authorization Act provided this interim authority to give the Secretary of the Interior (Secretary) time to exercise his/her authority under Section 704(a) of the MBTA to prescribe regulations authorizing such incidental take. The Secretary delegated this task to the U.S. Fish and Wildlife Service (Service). On February 28, 2007, the Service issued a final military readiness rule authorizing members of the Armed Forces to incidentally take migratory birds.

The Authorization Act also stated that the period of application of interim incidental take authority would expire when the Service publishes a notice in the Federal Register that: (1) Prescribes regulations authorizing incidental take of migratory birds by the Armed Forces; (2) all legal challenges to the regulations have been exhausted; and (3) the regulations have taken effect. The Service hereby provides the notice required by the Authorization Act that the period of application for interim incidental take authority has expired. The Service prescribed the necessary regulations on February 28, 2007, the regulations took effect on March 30, 2007, and there were no challenges to those regulations filed during the allotted time period.

FOR FURTHER INFORMATION CONTACT:

Dr. George Allen, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, at 703-358-1825.

SUPPLEMENTARY INFORMATION:

On December 2, 2002, the President signed the 2003 National Defense Authorization Act (Authorization Act). Section 315 of the Authorization Act provided that, not later than one year after its enactment, the Secretary of the Interior (Secretary) should exercise his/her authority under Section 704(a) of the MBTA to prescribe regulations authorizing the Armed Forces to incidentally take migratory birds during those military readiness activities authorized by the Secretary of Defense or the Secretary of the military department concerned. The Authorization Act further required the Secretary to promulgate such regulations with the concurrence of the Secretary of Defense. The Secretary delegated this task to the Service.

The Authorization Act also provided interim authority allowing members of the Armed Forces to incidentally take migratory birds during military readiness activities for a period beginning on the date of enactment of the Act (December 2, 2002) and ending on the date on which the Secretary publishes in the Federal Register a notice that—

(1) Regulations authorizing the incidental taking of migratory birds by members of the Armed Forces have been prescribed in accordance with the requirements of the Act;

(2) All legal challenges to the regulations and to the manner of their promulgation (if any) have been exhausted as provided in subsection (e) [which states that all challenges must be filed in Federal court within 120 days of publication of regulations in the Federal Register]; and

(3) The regulations have taken effect.

The Service published the military readiness final rule authorizing the referenced incidental take in the Federal Register on February 28, 2007 (72 FR 8931). The Service published the rule in coordination and cooperation with the Department of Defense and the Secretary of Defense concurred with the rule's requirements. Requirement 1 has, therefore, been satisfied. The rule became effective March 30, 2007, satisfying requirement 3. Regarding requirement 2, the statute of limitations for challenging the military readiness rule elapsed on June 28, 2007, and there were no challenges filed during the allotted 120-day time period. Therefore, the Service provides formal notice that the period of application for interim authority has expired.

Dated: May 17, 2011.

Eileen Sobeck,

Acting Assistant Secretary for Fish and Wildlife and Parks.