Finally, chimneys lined with metal should always be capped, as birds that enter these can easily become trapped. Reading the MBTA to capture incidental takings could potentially transform average Americans into criminals. the official SGML-based PDF version on govinfo.gov, those relying on it for Response: We disagree with the commenters' assertion that this rule signals that industry should not implement best management practices. The head of the agency therefore certifies that the rule would not have a significant economic impact on a substantial number of small entities. 2d at 1080-81. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). We will continue to interpret the misdemeanor provision of the MBTA as a strict-liability provision with no mental-state requirement, including intent. It is not part of the official APA rulemaking process or docket and plays no part in the agency's ultimate decision. On March 16, 2020, the Service held a webinar that was restricted in attendance to allow only Tribal members to attend, with the sole purpose of informing Tribes of the proposed action. Following the Wind Energy Guidelines has become industry best practice and would likely continue. As a biological monitor, I presented environmental trainings, conducted pre-activity surveys, conducted BMP inspections, conducted migratory bird surveys, monitored construction within critical . 703(a). Because data are unavailable about the distribution of possible range of measures and costs, we do not extrapolate cost data to small businesses. We refer the commenter to the analysis of the economic impacts of interpreting the scope of the statute to prohibit incidental take in the EIS and regulatory impact analysis conducted to comply with Executive Orders 12866, 13563, and 13771. Comment: One commenter focused on impacts of wind energy and suggested that the final rule should provide language that terminates wind-energy projects where the migratory bird mortality levels are not remediable. Comment: Multiple commenters felt that the MBTA needed to be amended by Congress to make the changes being proposed in this regulation. . Natural Res. Protect the Nest. No regulations have been issued to create a permit scheme to authorize incidental take, so most potential violators have no formal mechanism to ensure that their actions comply with the law. Closed wastewater systems typically used for reasons other than bird mitigation. As discussed above, collisions with buildings and cars are the second and Start Printed Page 1141third most common human-caused threat to birds, killing an estimated 599 million and 214.5 million birds per year, respectively. By codifying the Service's interpretation, first outlined in Solicitor's Opinion, M-37050, this rulemaking would remove legal uncertainty for any individual, government entity, or business entity that undertakes any activity that may kill or take migratory birds incidental to otherwise lawful activity. Likewise, a county road and highway department could use machinery to destroy bird nests under a bridge. . Register (ACFR) issues a regulation granting it official legal status. The subsequent amendments have instead fine-tuned the mens rea required for violations directed at migratory birds, including commercial use, hunting, and baiting. The Department should not be putting additional burdens on the public to respond at a time when the public is dealing with a global pandemic. Response: The proposed rule does not alter the burden of proof for intentional take under the MBTA. Government-to-government consultation is one facet of effectuation of the trust responsibility. Comment: One commenter stated that this rule represents a fundamental abdication of the Service's mission to protect native wild birds. 704(a). The commenters reasoned that Congress could have directed the Service to issue MBTA regulations that achieved the same result as this rulemaking action by limiting the MBTA to direct actions against migratory birds. New Documents Statements from individual Congressmen evince a similar focus on hunting. "Take" is defined in Section 86 of the California Fish and Game Code as "to hunt, pursue, catch, . The commenters noted that despite efforts to prevent incidental take, such take is not one-hundred-percent preventable and criminalizing incidental take does not advance conservation efforts. Search for volunteer opportunities around the country, News about wonderful wild things and places, FWS is taking steps to mitigate climate impacts, Search employment opportunities with USFWS, Minnesota Valley NWR - Fire as a Land Management Tool, Candidate Conservation Agreements (CCA & CCAA), Coastal Barrier Resources Act Project Consultation, Coastal Barrier Resources System Property Documentation. Response: We respectfully disagree that the Service has not justified its current interpretation of the MBTA. Permit holders would have no risk of prosecution provided they comply with the terms of the permit. Following this discussion is a summary of mitigation measures and costs (Table 6) and a summary of the economic effects of the rule on the business sectors identified in Table 1 (Table 7). Williams, Solicitor's Office, Department of Agriculture). 10, 45 Stat. Comment: A commenter noted that deaths of birds that are preventable and foreseeable are, in the context of the MBTA, negligent. The commenter is essentially proposing adopting an extra-hazardous activity requirement as a proxy for negligence or gross negligence. Moon Lake, 45 F. Supp. In some cases, these industries have been subject to enforcement actions and prosecutions under the MBTA prior to the issuance of M-37050. Under the proposed rule, the Service will continue to work with and encourage the voluntary implementation of BMPs when the entity seeks to reduce their project-related impacts. The Service will continue to monitor migratory bird species, particularly species of concern and candidates for listing under the ESA. This feature is not available for this document. The vast majority of entities in these sectors are small entities, based on the U.S. Small Business Administration (SBA) small business size standards. 742, 744-45 (D. Idaho 1989) (The statute itself does not state that poisoning of migratory birds by pesticide constitutes a criminal violation. Since then, some of the Nation's governors, State legislatures, and mayors jointly requested a suspension of public comment periods Start Printed Page 1144during this national emergency. 22-23 (1917) (statement of R.W. By contrast, the verbs kill and take are ambiguous in that they could refer to active or passive conduct, depending on the context. Thus, we are simply interpreting the existing language and not amending the statute or altering statutory language in this regulation. An agency has no authority to remove statutory protections without congressional approval. 04/17/2023, 151 The Service will take a reasonable amount of time to address and incorporate comments as necessary, deliberate on a final determination, and select an alternative presented in the final EIS. Some States may have regulations that require monitoring bird use and mortality at facilities; however, the number of States with regulations is unknown. There are voluntary Service guidelines issued for different industries that recommend best practices to avoid incidental take of protected birds; however, these guidelines provide only limited protection to potential violators and do not constitute a regulatory authorization or result in the issuance of permits. This rulemaking may violate federalism rules, as States will be required to use their budgets to implement migratory bird protection actions, including regulation development and permit systems. In rural areas, vultures have been known to predate young or vulnerable livestock, which is of great concern . Response: This rulemaking codifies our interpretation of the MBTA as prohibiting only conduct directed at migratory birds. Not all small businesses will be impacted by this rule. Id. The commenters noted there is a successful history of the Federal, State, and local governments along with industry working in coordination to implement measures to reduce impacts to migratory birds and that the proposed rule would dismantle the extraordinary and successful history of this cooperation. Yet, the Supreme Court has declared [i]t will not do to say that a prosecutor's sense of fairness and the Constitution would prevent a successful . 1914); United States v. McCullagh, 221 F. 288 (D. Kan. 1915). Because entering the nesting area can result in raptors leaving their nests, eggs, and young, such action is considered a disturbance and prohibited by Federal and some state laws. The commenter recommends the Service review its own web pages and the scientific literature to show that incidental take of birds is a significant problem. We established 45 days as an appropriate period for public comment on the draft EIS. Comment: One commenter stated that it is notable that no additional alternatives were in the proposed rule. WHAT TOWER OPERATORS CAN DO TO PROTECT RAPTORS AND NESTS ON TOWERS However, the interpretation of the MBTA applying Start Printed Page 1154strict liability to the law's criminal misdemeanor provision covering incidental take raises no constitutional problems, nor is it contrary to the intent of Congress. This also includes the nests, eggs or chicks of protected birds. 703-712. On January 7, the Service published a final rule defining the scope of the MBTA such that an incidental bird take resulting from an otherwise lawful activity, for . Fish and Wildlife Service (hereafter Service). NEPA compliance requires Federal entities to identify impacts to the environment affected by a proposal, including impacts to migratory birds and socioeconomic impacts if they are likely to occur. Moreover, the States and their citizens benefit from the role that migratory birds play in maintaining ecological balance and the valuable ecological services that they provide. documents in the last year, by the International Trade Commission Response: The Supreme Court's decision in Bostock is not applicable to our interpretation of the MBTA. For the reasons described in the preamble, we amend subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: 1. The Service will continue to implement the full suite of regulations authorizing conduct directed at migratory birds. 1531 et seq.) 2. documents in the last year, 18 documents in the last year, 1416 Of the five referenced verbs, threepursue, hunt, and captureunambiguously require an action that is directed at migratory birds, nests, or eggs. 541, 549 (W.D. from 35 agencies. See Lilley & Firestone at 1181 (In the early 1970s, United States v. Union Texas Petroleum [No, 73-CR-127 (D. Colo. Jul. [I]nadvertence in this statement refers to the boy's mens rea. Comment: The original legislative intent of the MBTA was the protection and sustainability of migratory bird populations. The Service has completed these consultations with all interested parties. Tribal representatives were allowed to ask questions and seek clarifications. Response: The summary of mortality from anthropogenic sources was based on the best scientific information currently available. At the very least, the Department should not be providing the minimum comment period. documents in the last year, 10 2d at 1209. Multiple federally recognized Tribes expect DOI to honor this policy in order to ensure no unilateral actions are taken that affect Tribal land, territories or people without Tribal consent. There is nothing in this legislation that authorizes the government to pursue incidental takings charges in other contexts. The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. This rule is an E.O. The Government of Canada submitted comments on the draft EIS associated with this rulemaking. Cal. The Service is partner to multiple efforts to track migratory bird populations (e.g., Partners in Flight Landbird Plan, Avian Conservation Assessment Database, etc.). Congress intended take to be read consistent with its common law meaningto reduce birds to human control. Within the EIS, the Service analyzed impacts of the no action alternative and two additional alternatives on (1) The overall effect of each alternative on migratory bird populations, (2) the effect of any decrease in migratory bird populations on ecosystem services, (3) the potential effects of climate change in combination of each alternative, and (4) the impacts to industry and small business that may profit from migratory birds. Comment: One commenter asked whether any best management practices would be required under any circumstances and how the proposed rule affected both Executive Order 13186: Responsibilities of Federal Agencies to Protect Migratory Birds and the implementation of the Land-based Wind Energy Guidelines. is not required. We will continue to implement these programs consistent with our treaty obligations. Though we conclude that this rule will have some negative effects on populations of some species, we do not find that those effects will be substantial. That Congress was animated regarding potential restrictions on hunting and its impact on individual hunters is evident from even the statements relied upon as support for the conclusion that the statute reaches incidental take. The Service has not addressed this international aspect in its planning and has not worked with the State Department on the issue. On December 22, 2017, the Principal Deputy Solicitor of the Department of the Interior, exercising the authority of the Solicitor pursuant to Secretary's Order 3345, issued a legal opinion, M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take (M-37050 or M-Opinion). Treaty Act and Migratory Bird Conservation Act (16 U.S.C. Fish and Wildlife Service. Comment: One commenter stated that the proposed rule is not consistent with section 2(a) of the Migratory Bird Treaty Act, which states that it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill . Such small entities would benefit from this rule because it would remove uncertainty about the potential impacts of proposed projects. Comment: One commenter questioned the evidence suggesting that this rule change is warranted. A small government agency plan is not required. 3(h), 92 Stat. Additionally, after publication of the final EIS, the Government of Canada submitted a further comment expressing concern regarding this rule. Response: The rule does not attempt to parse the difference between Start Printed Page 1152deliberate and foreseeable. Those terms are not relevant to our interpretation of the MBTA. Use the PDF linked in the document sidebar for the official electronic format. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. Cost not available for wastewater systems. Response: A wide array of statutory mandates provide protections to wildlife, including migratory birds. This rule addresses the Service's responsibilities under the MBTA. 3501 et seq.) High variability in cost and need to retrofit power poles. There is no requirement under the Administrative Procedure Act (APA) to consider alternatives in the proposed rule itself (Executive Order 12866 requires consideration of alternatives that would have less economic impact on regulated entities for economically significant rulemakings, as set forth in the regulatory impact analysis made available for review with the proposed rule). However, this rulemaking is not expected to affect significantly those continuing declines. The proposed rule uses the commonly understood definition of incidental and does not purport to redefine that term in any way. Table 2 shows the distribution of businesses by employment size and average annual payroll. Similar to the earlier Conventions, the provisions of the Japan and Russia Conventions authorized purposeful take for specific activities such as hunting, scientific, educational, and propagation purposes, and protection against injury to persons and property. Response: The preamble to this rulemaking explains in detail our interpretation of the language of the MBTA, including applicable legislative history and why our interpretation is consistent with that history. The Service drafted the proposed rule with sufficient flexibility to incorporate the alternatives analyzed in the draft EIS. at 1583 n.9 (noting that the FMC court's limiting principle . An estimate for the number of pits is unknown because some are ephemeral, present only while a well is being drilled, and others last for the life of the well. The Tenth Circuit in Apollo Energies took a similar approach, holding the MBTA requires a defendant to proximately cause the statute's violation for the statute to pass constitutional muster and quoting from Black's Law Dictionary to define proximate cause. Apollo Energies, 611 F.3d at 690. does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisionsit does not, one might say, hide elephants in mouseholes. Whitman v. Am. has no substantive legal effect. Response: The Service began the NEPA process at the appropriate timewhen it first considered rulemaking regarding the interpretation of the MBTA originally set forth in M-37050. include documents scheduled for later issues, at the request This document has been published in the Federal Register. However, in lieu of an initial or final regulatory flexibility analysis (IRFA or FRFA) the head of an agency may certify on a factual basis that the rule would not have a significant economic impact on a substantial number of small entities. See Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir. 2d 161 (D.D.C. Pa. 1997). Learn about best management practices to protect birds and their nests when working on City projects. The Service engaged the NEPA process at the time it began to consider rulemaking to codify the M-Opinion (the reasonable alternatives include potential outcomes of the proposed rulemaking), and that process will be complete before any final formal agency decision is made. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). because Congress gave `take' a broader meaning for that statute.). Thirteen States (Illinois, Arkansas, Oklahoma, Texas, North Dakota, South Dakota, Nebraska, Montana, Wyoming, Colorado, Utah, New Mexico, and California) have regulations governing the treatment of oil pits such as netting or screening of reserve pits, including measures beneficial to birds. Neotropical Migratory Birds are defined as species whose breeding area includes the North American temperate zones and that migrate in many cases south of the continental United States during nonbreeding seasons (Hunter et al 1993). 1978) (the court instructed the jury not to consider the company's remediation efforts as a defense: Therefore, under the law, good will and good intention and measures taken to prevent the killing of the birds are not a defense.). Even assuming that the text could be subject to multiple interpretations, courts and agencies are to avoid interpreting ambiguous laws in ways that raise constitutional doubts if alternative interpretations are available. In addition, a variety of factors would influence whether, under the previous interpretation of the MBTA, businesses would implement such measures. Response: We acknowledge this comment and submit that we will continue to implement relevant domestic laws and regulations and provide technical advice and assistance to our treaty partners and encourage continued conservation and protection of migratory birds to the extent authorized by their domestic laws. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. The proposed rule impermissibly excludes requirements of foreseeability and negligence by arguing that the statute only prohibits actions directed at birds to exempt industries whose projects kill birds incidentally. See Protocol between the Government of the United States and the Government of Canada Amending the 1916 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds, Sen. Treaty Doc. establishing the XML-based Federal Register as an ACFR-sanctioned Instead, the opinion presumed that the lack of a mental state requirement for a misdemeanor violation of the MBTA equated to reading the prohibited acts kill and take as broadly applying to actions not specifically directed at migratory birds, so long as the result is their death or injury. Source: U.S. Census Bureau, 2012 County Business Patterns. We completed an environmental impact statement (EIS) analyzing the potential impacts of a reasonable range of alternatives for this action. Some States have statutes with procedural requirements similar to those found in NEPA (e.g., California Environmental Quality Act) and a variety of provisions regulating some form of incidental, indirect, or accidental take, or potentially allowing commissions or agencies to make applicable rules. 2010) (concluding that under an incidental take interpretation, [t]he actions criminalized by the MBTA may be legion, but they are not vague). by the Internal Revenue Service Comment: The same commenter also noted that the recent Supreme Court ruling in Dep't of Homeland Security v. Regents of the University of California, 207 L. Ed. Adopting this regulation ignores that science and fails to protect the environment. In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. We summarized and addressed substantive comments received from the Government of Canada in Appendix C of the final EIS. Further, the subsequent publication and comment period on the draft EIS was after-the-fact, indicating a decision was already made regardless of the environmental consequences determined in the EIS. Response: The Service takes its Tribal trust responsibilities seriously and completed government-to-government consultation when requested. 11 (1917) (statement of E. W. Nelson, Chief Bureau of Biological Survey, Department of Agriculture). Comment: The Service cannot conduct a credible NEPA process based on the timeline and chronology it has presented at this point. Response: The commenters are correct that whether the Service interprets the MBTA to prohibit or exclude incidental take, that interpretation will not by itself resolve the current split in the circuit courts. As noted in the M-Opinion, nothing in the referenced amendments disturbs Congress's original intent that section 2 apply only to actions directed at migratory birds. Using closed waste-water systems or netting of oil pits and ponds. at 1754. . Comment: Multiple commenters felt the manner in which this proposed rulemaking was announced on January 30, 2020, by the Service's Office of Public Affairs was improper and a violation of the APA (Pub. The U.S. Response: The Service has fulfilled the commenter's request through the publication of a draft EIS, which analyzed a no action alternative and two action alternatives. The commenters noted that the Executive Order defines take consistent with the Service's general definition applicable to all wildlife statutes in 50 CFR 10.12. See Act of June 1, 1974, Public Law 93-300, 88 Stat. The commenter Start Printed Page 1150recommended including a clause to stop the implementation of this proposed rule if populations are negatively impacted by incidental take from anthropogenic sources. Response: The procedures followed in this rulemaking process were appropriate and lawful. We do not base our current interpretation solely on those due process concerns; instead, they reinforce our current interpretation as the correct construction of section 2's ambiguous language.

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