Interior Department Takes Steps to Revoke Final Rule on Migratory Bird Treaty Act Incidental Take

Date: Thursday, May 6, 2021
Contact: Interior_Press@ios.doi.gov

WASHINGTON —Today, the U.S. Fish and Wildlife Service announced a proposed rule to revoke the January 7, 2021, final regulation that limited the scope of the Migratory Bird Treaty Act (MBTA). Significant concerns about the interpretation of the MBTA have been raised by the public, legal challenges in court and from the international treaty partners.

This proposed rule provides the public with notice of the Service’s intent to revoke the January 7 rule’s interpretation of the MBTA and return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent.

“The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting migratory birds and restoring declining bird populations,” said Secretary Deb Haaland. “Today’s actions will serve to better align Interior with its mission and ensure that our decisions are guided by the best-available science.”

“Migratory bird conservation is an integral part of the U.S. Fish and Wildlife Service’s mission,” said Service Principal Deputy Director Martha Williams. “We have heard from our partners, the public, Tribes, states and numerous other stakeholders from across the country that it is imperative the previous administration’s rollback of the MBTA be reviewed to ensure continued progress toward commonsense standards that protect migratory birds.”

On January 7, the Service published a final rule defining the scope of the MBTA as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA. This rule made significant changes to the scope of the MBTA to exclude incidental take of migratory birds, with an effective date of February 8.

The Service extended the effective date until March 8 and opened a public comment period. Rather than extending the effective date again, the agency believes the most transparent and efficient path forward is instead to immediately propose to revoke the rule.

The Service requests public comments on issues of fact, law and policy raised by the MBTA rule published on January 7. Public comments must be received or postmarked on or before June 7, 2021. The notice will be available at www.regulations.gov, Docket Number: FWS-HQ-MB-2018-0090, and will include details on how to submit your comments.

The agency will not accept email or faxes. If you provided comments in response to the February 9, 2021, notice to extend the effective date, you do not need to resubmit those comments. All comments will be considered.

On March 8, 2021, Interior rescinded the 2017 Solicitor’s Opinion M-37050 on the MBTA that had overturned decades of bipartisan and international consensus. The reasoning and basis behind that M-Opinion were soundly rejected in federal court. The Endangered Species Act and the Bald and Golden Eagle Protection Act, as well as state laws and regulations, are not affected by the Solicitor’s Opinion M-37050 or the January 7 final regulation.

All the documents related to the rulemaking process and further information are available at the U.S. Fish and Wildlife Service’s regulations page.

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