Governing the take of migratory birds under the Migratory Bird Treaty Act

October 4, 2021

Final Rule to Revoke the January 7, 2021 Regulation and Advanced Notice of Proposed Rulemaking

On October 4, 2021, the Service published a final rule revoking the January 7, 2021, regulation that limited the scope of the MBTA. With this final and formal revocation of the January 7 rule, the Service returns to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and long-standing agency practice prior to 2017. This final rule went into effect on December 3, 2021. The Service is also publishing the final economic documents, the Final Regulatory Flexibility Analysis and Final Revised Regulatory Impact Analysis, following public comments.

In addition, the Service published aFinal Record of Decision in compliance with the National Environmental Policy Act. The Record of Decision now states that the Service will implement Alternative B, the Environmentally Preferred Alternative, revoking the January 7 regulation and beginning a new process to promulgate a regulation that defines the scope of the MBTA’s prohibitions to include actions that incidentally take migratory birds.

The Service also issued a Director’s Order to provide instruction to Service employees, including expectations for conducting Service activities and prioritizing our law enforcement activities. This Director’s Order also went into effect on December 3, 2021.

In addition, the Service simultaneously published an Advanced Notice of Proposed Rulemaking (ANPR) announcing the intent to solicit public comments and information as we consider developing proposed regulations to authorize the incidental take of migratory birds. And as part of the development of these regulations, the Service is also preparing a draft Environmental Impact Statement pursuant to the National Environmental Policy Act of 1969, as amended.

July 20, 2021

Economic Analyses Documents for Proposal to Revoke the January 7, 2021 Final Regulation

The Service announced that two economic analyses documents associated with the proposed Migratory Bird Treaty Act (MBTA) revocation rule are open for a 30-day public comment period on these documents.

• Initial Regulatory Flexibility Analysis for Regulations Governing Take of Migratory
• Regulatory Impacts Analysis for the Proposed Revocation of MBTA Incidental Take Definition

The public comment period closes on August 19, 2021.

May 7, 2021

Proposal to Revoke the January 7, 2021 Final Regulation

On May 7, 2021, the Service published a proposal to revoke the January 7, 2021 final regulation that limited the scope of the Migratory Bird Treaty Act. The effect of this proposed rule would be to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent. In addition, the Service opened a public comment period and is soliciting public comments on issues of fact, law and policy raised by the MBTA rule published on January 7. Public comments were due by June 7, 2021.

March 8, 2021

Permanent Withdrawal of Solicitor Opinion M-37050

The Department of Interior rescinded the M-opinion 37050 that stated the Migratory Bird Treaty Act does not prohibit incidental take.

February 9, 2021

Correction of Effective Date and Request for Public Comments

The original effective date of the rule was February 8, 2021; when this document posted online in the Federal Register reading room for public inspection on February 5, it immediately changed the effective date to March 8, 2021, 60 days from its initial publication.

We also invited public comments on the MBTA rule to allow interested parties to provide comments about issues of fact, law, and policy raised by that rule and whether the rule should be amended, rescinded, delayed pending further review by the agency, or allowed to go into effect.

January 7, 2021

Final regulation

The final regulation defining the scope of the Migratory Bird Treaty Act published in the Federal Register. It was scheduled to go into effect on February 8, 2021.

December 31, 2020

Record of Decision, followed by publication of a final rule

The NEPA process ended with the issuance of the Record of Decision (ROD). The purpose of this ROD is to document the decision of the Service for selecting the alternative of choice. This ROD is designed to a) state the Service's decision, present the rationale for its selection, and portray its implementation; b) identify the alternatives considered in reaching the decision; and c) state whether all means to avoid or minimize environmental harm from the implementation of the selected alternative have been adopted (40 CFR 1505.2). The final step of the rulemaking process is the publication of a final rule.

For additional information, see A Guide to the Federal Rulemaking Process and the Office of Management and Budget’s RegMap.

November 27, 2020

Publication of final EIS

The final EIS is published, which provides responses to substantive comments. The Notice of Availability published in the Federal Register, announcing the availability of both draft and final EISs to the public. The final EIS is available for public review for 30 days, after which the Service will issue a Record of Decision.

Late Summer 2020

Draft EIS review and analysis

Upon the close of the comment period of the draft EIS and draft rule on July 20, 2020, the Service considered all substantive comments and conducted further analyses.

August 11, 2020

Court Vacates the M-Opinion

After issuance of the proposed rule and draft EIS, a Federal district court vacated M-Opinion 37050. See Natural Resources Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y. Aug. 11, 2020). The rulemaking process continued, addressing legal issues raised by the court, as appropriate.

June 5, 2020 to July 20, 2020

Public Review and Comment Period for the draft Environmental Impact Statement

The Service published the draft EIS for public review and comment for 45 days. As part of the process, agencies identify and invite the participation of interested people. This means the public has an opportunity to comment on the scope of the EIS at the beginning of the process, and again on the draft EIS before a final EIS is issued. The public comment period closed on July 20, 2020.

Spring 2020

The Service analyzed public comments and prepared draft Environmental Impact Statement (EIS)

Under the National Environmental Policy Act, an EIS is required for major federal actions that significantly affect the quality of the human environment. An EIS is the document that evaluates and discusses potential environmental impacts that would occur as a result of an agency taking an action. It details the process through which a project is developed, includes consideration of a range of reasonable alternatives, analyzes the potential impacts resulting from the alternatives, and demonstrates compliance with other applicable environmental laws and executive orders. The EIS also informs the development of the draft rule, which was also developed during this timeframe.

February 3 - March 19, 2020

Proposed rule public comment period and public scoping period

The Service provided public webinars and sought public comment through Regulations.gov Docket No. FWS–HQ–MB–2018–0090.

February 3, 2020

Proposed Rule and Notice of Intent for Environmental Impact Statement published in the Federal Register

The U.S. Fish and Wildlife Service (Service) published a proposed rule to codify the Department of the Interior's legal opinion (M-37050) regarding the governing of "take" of birds under the Migratory Bird Treaty Act. This proposed rule stated that the scope of the Migratory Bird Treaty Act only reaches to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the Act.

Concurrently, the Service determined that a combined Environmental Impact Statement under the National Environmental Policy Act was the most efficient and comprehensive approach for considering the impacts of this proposed rule on the environment. Therefore, we published a ;Notice of Intent for the Environmental Impact Statement that commenced a public scoping period, and request information and recommendations from the public on the scope of the issues to be included in the Environmental Impact Statement.

December 22, 2017

Department of the Interior Solicitor's Office Released Opinion M-37050

This M-Opinion (M-37050) determined that the legal scope of the MBTA applies to intentional take of migratory birds and concluded that the take of birds resulting from an activity is not prohibited when the underlying purpose of that activity is not to take birds. This interpretation is different than how the MBTA has been administered previously. Therefore, the Service determined that an Environmental Impact Statement under the National Environmental Policy Act is the most comprehensive approach for considering the impacts of these actions on the environment.