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The draft regulation that would codify the "Jorjani M-Opinion" stating that the MBTA dos not cover incidental take was apparently been circulated in early July to other federal agencies for comment. This is a standard process for pending regulations pertaining to matters that impact those agencies, or for which those agencies have shared legal authority (which is the case with most natural resource laws). The agencies were given only 15 days to respond, which is an incredibly short period of time - far shorter than is the norm.
It is not known if the draft was also circulated to the state agencies (also standard practice; the states share responsibility and authority for protection of migratory birds). The OC is attempting to ascertain if the state agencies have been asked for their input yet. It is anticipated that the USFWS will face substantial push-back from the states, or many of them. In fact, one of the two lawsuits against the underlying M-Opinion was filed by a group of State Attorneys General. Both lawsuits - the case filed by the states and another filed by a group of NGOs - are still pending in the Southern District of New York. It was thought that the USFWS would not publish the proposed regulation for public comment until that case was resolved because if the decision is unfavorable to the USFWS (i.e., strikes down the M-Opinion), the new regulation would either be moot in its entirety or perhaps have to be re-written in accordance with the court decision.
The U.S. Department of Agriculture has now added to existing restraints on the suppression of scientific research conducted and published by scientists employed by the U.S. government.
UPDATE 14 May 2019: Per the Washington Post (10 May) "The Agriculture Department has dropped its demand that staff scientists label peer-reviewed research as “preliminary,” after angry protests followed a Washington Post story disclosing the policy." See more details, below.
This news and analysis are provided by the Ornithological Council, a consortium supported by 11 ornithological societies. Join or renew your membership in your ornithological society if you value the services these societies provide to you, including OrnithologyExchange and the Ornithological Council.
Under federal regulation, you are authorized to continue doing the work for which you have been issued an MBTA permit after that permit expires IF you have applied for renewal at least 30 days prior to the permit expiration date. Continue reading for important detail.
Update 30 Jan 2019 on BIRD BANDING PERMITS: We are advised by the BBL that the backlog of work awaiting them upon return from the shutdown return is daunting. Permit renewals were the #1 priority for the BBL permit office. The BBL staff has completed that task for the permits that expired in December/January and should have the February permits (that we have received) renewed before the end of the week. Any bander with a permit that expires in February or March should request renewal before Feb. 15 in case of a second shutdown. The BBL is turning our attention to the other permit related requests and will plow through that backlog as fast as week can, prioritizing those banding activities that are planned to start within the next month or so. They should be caught up with the band order requests by early next week. Operationally, the banding community should not experience many problems for ongoing operations as a result of the shutdown. They should be caught up before the activities for the 2019 field season crank up in May/June unless they experience another shutdown in mid-February.
The Airborne Hunting Act applies to "any contrivance used for flight in the air" and prohibits "harassment" which is defined as "disturb, worry, molest, rally, concentrate, harry, chase, drive, herd, or torment." Does this mean that ornithologists can't use small unmanned aircraft (SUA) to study birds? IF YOU HAVE APPLIED FOR A STATE PERMIT TO USE DRONES (A STAND-ALONE PERMIT OR AS PART OF YOUR STATE SCIENTIFIC COLLECTING PERMIT, PLEASE CONTACT THE ORNITHOLOGICAL COUNCIL. We want to hear about your experience, particularly if you were NOT working collaboratively with a state or federal agency. UPDATE 27 March 2018: A PowerPoint explaining all U.S. laws that pertain to the use of drones to study wildlife has been posted on BIRDNET.
UPDATE JAN 2019: AS A RESULT OF THE ORNITHOLOGICAL COUNCIL'S EFFORTS, THE U.S. FISH AND WILDLIFE SERVICE WILL BE ISSUING A NEW REGULATION - PROBABLY IN THE THIRD QUARTER OF 2019 - TO ALLOW THE USE OF DRONES TO STUDY BIRDS. Of course, as the shutdown drags on, the work needed to develop this new regulation will be delayed.