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US | USFWS Takes Actions Impacting Migratory Bird Treaty Act

In the October 4, 2021 edition of the Federal Register, the U.S. Fish and Wildlife Service (FWS) published two related actions relative to codify its prohibition on incidental takes.

First, the FWS revoked a prior rule which defined the scope of the MBTA for conduct resulting in the injury or death of MBTA birds. The FWS also wrote that the purpose of the change is to return to applying the MBTA consistent with FWS standards before 2017. Second, the FWS announced plans to create new rules for migratory-bird death caused by humans. With this action, the FWS stated its intent to ban incidental take of migratory birds and to develop regulations that authorize incidental take under prescribed conditions. The FWS is accepting comments to help develop the proposed rules until the revocation takes effect on December 3, 2021.

Scope of MBTA

On January 7, 2021, the FWS published a final rule (the January 7 rule) which defined the scope of the MBTA for conduct resulting in the injury or death of migratory birds. According to the revoked January 7 rule, the MBTA prohibits directed (intentional) take of migratory birds but does not prohibit incidental (unintentional) take of migratory birds. With this action, the FWS is returning to its prior interpretation that the MBTA prohibits both intentional and incidental take of migratory birds. The FWS explained that the January 7 rule does not reflect the best reading of the MBTA’s text, purpose, and history. FWS also noted that the January 7 rule has been the subject of many lawsuits and causes serious concerns for treaties with Canada.

Incidental Take of MBTA Birds

FWS is gathering information to develop new rules that permit the incidental take of migratory birds under prescribed conditions. FWS is supplying this notice to advise other agencies and the public of its intentions, obtain suggestions and information to include in the new rules, and announce public scoping webinars. FWS will hold six scoping meetings in webinar format. It is also seeking written comments that may be submitted as follows:
  • Submit electronic comments at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS-HQ-MB-2021-0105.
  • Submit hard copy comments via U.S. mail: Public Comments Processing, Attn: FWS-HQ-MB-2021-0105; U.S. Fish and Wildlife Service; MS: PRB/3W; 5275 Leesburg Pike; Falls Church, VA 22041-3803.
____________________ Sources
USFWS Final Rule, Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 FR 54642 (October 4, 2021) USFWS Advance Notice of Proposed Rulemaking, Migratory Bird Permits; Authorizing the Incidental Take of Migratory Birds, 86 FR 54667 (October 4, 2021) ____________________
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