Dear Mr. Ford: The U.S. Chamber of Commerce (Chamber) appreciates the opportunity to comment on the U.S. Fish and Wildlife Service’s (FWS) proposed rule, “Regulations Governing Take of Migratory Birds.”¹ The Chamber recognizes the importance of avian conservation but it nevertheless opposes revocation of the January 7, 2021, final rule² (January 7 Rule), which interprets the Migratory Bird Treaty Act (MBTA) to prohibit only those affirmative acts directed at migratory birds.
The conservation of migratory birds is important to businesses operating across industries. As detailed here, businesses have invested (and continue to invest) significant resources to develop and implement conservation practices, including Avian Protection Plans (APP). And businesses have taken these steps voluntarily, with the goal of minimizing incidental impacts to migratory birds. Subjecting businesses to criminal liability and significant penalties under the MBTA for incidental taking under the MBTA—particularly as businesses operate in good faith to help sustain healthy migratory bird populations—is improper and inconsistent with the statute. Moreover, as a matter of policy, the public, industries, states, tribes, and other stakeholders will face serious regulatory uncertainty and risk with an expansive reading and implementation of the MBTA, none of which is necessary to support best practices for conservation and protection of migratory birds. Such increased uncertainty is of particular concern due to the expansive list of migratory birds that FWS has identified as protected by the MBTA. FWS’s current list of protected birds comprises 1093 species of birds, including such common species as the American crow.³