The U.S. Fish & Wildlife Service today issued a final rule effective Friday, Dec. 3 revoking a Trump administration regulation promulgated in January that clarified that the Migratory Bird Treaty Act’s (MBTA) prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only applies to conduct intentionally injuring birds.
In returning to implementation of the MBTA as prohibiting incidental take and applying enforcement discretion, USFWS reasoned that the Jan. 2021 regulation “does not reflect the best reading” of the law’s text, purpose, and history, is inconsistent with the majority of relevant court decisions, and raised concerns with Canada, migratory bird species, and underlying treaties.
In conjunction with the revocation, USFWS said that it would introduce new policies in the future, including a proposed rule codifying its interpretation of MBTA and possibly a regulatory framework for issuing permits authorizing incidental take.
To that end, USFWS separately announced that it is seeking comments by Friday, Dec. 3 on the agency’s intention to gather information needed to develop a proposed rule authorizing incidental taking or killing of migratory birds.
