Williams, Solicitor's Office, Department of Agriculture). Rather, each requires a deliberate action specifically directed at achieving a goal. The authority in section 3 is also contingent on an understanding of what actions violate the statute in the first place. . Further, the commenter noted that the notice of the proposed rule acknowledges that Congress intended to adopt the common law definition of statutory terms such as take.. $4,600 for Tori line We do not interpret that action as Congress clearly speaking to the broad issue of the overall scope of the statute as it applies to incidental take. Response: Per the National Environmental Policy Act (NEPA), the Service analyzed the impacts mentioned by the commenter within the draft Environmental Impact Statement (EIS) published June 5, 2020. Finalizing a species-specific 4(d) rule concurrent with a listing or reclassification determination ensures that the species receives appropriate protections at the time it is added to the list as a threatened species. Comment: The proposed rule incorrectly concludes that the terms kill and take are ambiguous. Some nests are hard to see and identify, making them more vulnerable to inadvertent destruction. wounding, killing, possessing or transporting any migratory bird, nest, egg, or part thereof. 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. 1582 (Such trust in prosecutorial discretion is not really an answer to the issue of statutory construction in interpreting the MBTA.). 4647 (Nov. 19, 1976) (Russia Convention). Owing to the diversity in operations of the various industries affected by this rule, USFW shall develop industry specific guidelines for developing precautionary measures to prevent the taking or killing of migratory birds.. Register, and does not replace the official print version or the official Executive Order (E.O.) Protection may entail maintaining a safe, Natural Res. The most effective way to reduce uncertainty and have a truly national standard is for the Service to codify and apply a uniform interpretation of the MBTA that its prohibitions do not apply to incidental take, based upon the Fifth Circuit's ruling in CITGO Petroleum Corporation. 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. Under very limited circumstances, the Service may issue permits to take active nests. Comment: A commenter stated that the Service has done little to demonstrate how this proposed rule actually benefits birds, instead focusing almost exclusively on economic interests of previously regulated industries. . Comment: Several commenters stated that some estimates of bird mortality used in the rule are more than a decade old and out of date. 13186 has not to date been revoked, M-Opinion 37050 and this rulemaking directly conflict with that standing presidential directive. Tree clearing conducted May 1 to August 31, inclusive, may result in prohibited take under the MBTA. The commenter noted that as the Courts have advised, where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. The commenter claimed the Service appears concerned that strict liability for incidental takes of migratory birds does not provide adequate notice of what constitutes a violation and would lead to absurd results. Id. Accordingly, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Fox Television, 567 U.S. at 253 (quoting Connally v. General Constr. Any chicks within those nests would likely be destroyed killing those chicks, but the maintenance workers would not take them in the common law sense. The Service is committed to working with those that voluntarily seek to reduce their project-related impacts to migratory birds. Response: The procedures followed in this rulemaking process were appropriate and lawful. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). In October, the U.S. was enacted in 1918 to help fulfill the United States' obligations under the 1916 "Convention between the United States and Great Britain for the protection of Migratory Birds." 39 Stat. that agencies use to create their documents. Comment: The Flyway Councils noted that the proposed rule was brought forth without the proper procedures as outlined by NEPA and the APA. Comment: Multiple commenters noted that M-Opinion 37050 and the proposed action will likely result in increased mortality of migratory birds. Courts of Appeals in the Second and Tenth Circuits, as well as district courts in at least the Ninth and District of Columbia Circuits, have held that the MBTA criminalizes some instances of incidental take, generally with some form of limiting construction. The Service's selection of this alternative and the basis for that selection are provided in the Record of Decision signed by the Director of the U.S. which are directed immediately and intentionally against a particular animalnot acts or omissions that indirectly and accidentally cause injury to a population of animals. Sweet Home, 515 U.S. at 719-20 (Scalia, J., dissenting) (agreeing with the majority opinion that certain terms in the definition of the term take in the Endangered Species Act (ESA)identical to the other prohibited acts referenced in the MBTArefer to deliberate actions, while disagreeing that the use of the additional definitional term harmused only in the ESAmeant that take should be read more broadly to include actions not deliberately directed at covered species); see also United States v. CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. 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. Aug. 11, 2020) (dismissing constitutional concerns, but on the basis that the relevant language is unambiguous). Prior to the publication of the proposed rule, the Service held six public scoping webinars in March 2019, which were open to any members of the public, including members of Federal and State agencies, Tribes, non-governmental organizations, private industries, and American citizens. Only Congress can enact or amend statutory language. See Natural Res. Therefore, these entities will have better information for planning projects and achieving goals. The Service also notes that the motivation to implement conservation measures to mitigate harm to migratory birds is not simply driven by the threat of enforcement. Dictionary definitions of the term take at the time of MBTA enactment were consistent with this historical use in the context of hunting and capturing wildlife. 703(a) (Unless and except as permitted by regulations made as hereinafter provided . This regulatory change is not expected to change current implementation or enforcement of the MBTA. There are also State and local laws that would prevent the unnecessary killing of birds. The Service notes that a Federal regulation applies across all agencies of the Federal Government and provides a more permanent standard that the public and regulated entities can rely on for the foreseeable future, in contrast to continued implementation of the MBTA under a legal opinion. Information about this document as published in the Federal Register. Any likely impacts of a Federal action on migratory bird species also listed under the ESA would require consultation whether or not incidental take of that species is prohibited under the MBTA. The clause proposed by the commenter would be inconsistent with our interpretation of the Act and would essentially add a requirement to the MBTA. Response: This rulemaking is based on the Department's interpretation of ambiguous language in a statute the Secretary is charged with implementing and does not amend the language of the MBTA. . In addition, commenters noted that the 45-day comment period was inadequate for a rule that proposes to substantially change decades of conservation policy and hinder bird conservation in the United States, given the current National State of Emergency in response to the novel Covid-19 coronavirus. The announcement was not considered in developing this final rule. NEPA also requires Federal entities to assess potential mitigation of unavoidable adverse environmental impacts, which may include analysis of project design or mitigation measures that reduce potential impacts to migratory birds. Response: As explained by the Fifth Circuit in the CITGO case, the 2003 Authorization Act does not require the conclusion that Congress interpreted the MBTA to apply broadly to incidental take. 6113, 6128). . DOI and the bureaus do not guarantee that outside websites comply with Section 508 (Accessibility Requirements) of the Rehabilitation Act. Federal Register issue. The MBTA is a national law. In accordance with E.O. Often, monitoring of industrial projects is not conducted, and when it is, the Service rarely gets reports of the findings. What are you going to do in a case like this: A barefoot boy, as barefoot boys sometimes do, largely through inadvertence and without meaning anything wrong, happens to throw a stone at and strikes and injures a robin's nest and breaks one of the eggs, whereupon he is hauled before a court for violation of a solemn treaty entered into between the United States of America and the Provinces of Canada. Within our environmental analysis of this rulemaking conducted under NEPA, we acknowledge that other Federal or State regulations may require measures that reduce incidental take of birds. Comment: Only a few years ago, the United States exchanged formal diplomatic notes with Canada reaffirming our countries' common interpretation that the treaty prohibited the incidental killing of birds. This table of contents is a navigational tool, processed from the Data not available for number of operators who have implemented these practices. We are codifying that interpretation in this rulemaking. One of the easiest ways that anyone can support bird habitat conservation is by buying duck stamps. We will continue to work with our domestic and international partners, the regulated community, and the public at large to uphold our commitment to ensure the long-term conservation of migratory birds under the migratory bird Conventions. This argument is contrary to the Supreme Court's admonition that Congress . Closed wastewater systems typically used for reasons other than bird mitigation. Comment: One commenter recommended imposing stricter regulations along main migratory routes where high concentrations of MBTA species are biologically vulnerable (including stopover areas along migration routes, and core breeding/wintering areas), especially for threatened or endangered species or Species of Conservation Concern. 1222, 1224 (1929) (codified as amended at 16 U.S.C. It is anticipated that some entities that currently employ mitigation measures to reduce or eliminate incidental migratory bird take would reduce or curtail these activities given the legal certainty provided by this regulation. Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (Act; 16 U.S.C. & Constr. Response: An analysis of reasonable alternatives to a proposed action is a requirement of the NEPA process. Open for Comment, Economic Sanctions & Foreign Assets Control, Tool Chests and Cabinets From China and Vietnam, Experimental Permits for Reusable Suborbital Rockets, Animal and Plant Health Inspection Service, Medicaid and Children's Health Insurance Program, Prohibition on Use by the United States Government of Commercial Spyware That Poses Risks to National Security, Policy Analysis of Incidental Take Under the MBTA, Regulatory Planning and Review (Executive Orders 12866 and 13563), Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act, Crude Petroleum and Natural Gas Extraction (NAICS 211111), Drilling Oil and Gas Wells (NAICS 213111), Solar Electric Power Generation (NAICS 221114), Other Industries (NAICS 221115, 221121, 221122, and 517312), Compliance with Endangered Species Act Requirements, Government-to-Government Relationship With Tribes, https://www.federalregister.gov/d/2021-00054, MODS: Government Publishing Office metadata, title 50 of the Code of Federal Regulations, https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php, https://beta.regulations.gov/docket/FWS-HQ-MB-2018-0090/document, Crude Petroleum and Natural Gas Extraction, Wireless Telecommunications Carriers (except Satellite). 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 inconsistency among States in State code may complicate industry understanding of expectations across the many States in which they operate, potentially requiring multiple State permits to conduct business. Comment: Multiple commenters suggested that reinterpretation of the MBTA will cause tension with Canada, whose migratory bird populations will also be affected by rules that are more lenient. Response: The Service acknowledges that birds are currently in decline. Take and possession under MBTA can be authorized through regulations, such as hunting regulations, or permits, e.g., salvage, research, . Response: We refer the commenter to the EIS and the regulatory impact analysis for our conclusions regarding the environmental and economic impacts of this rulemaking and its reasonable alternatives on migratory birds and regulated entities. on The prior Solicitor's Opinion, M-37041, took a different tack from the NRDC court and assumed that because the criminal misdemeanor provision of the MBTA is a strict-liability crime, meaning that no mens rea or criminal intent is required for a violation to have taken place, any act that takes or kills a bird must be covered as long as the act Start Printed Page 1137results in the death of a bird. 1577-78 (listing a litany of scenarios where normal everyday actions could potentially and incidentally lead to the death of a single bird or breaking of an egg in a nest)). In making this change, the Senate Report noted that the amendment was not intended in any way to reflect upon the general application of strict liability under the MBTA.. Also included are migratory birds and other species protected by state rules. Response: The Court's holding in Homeland Security does not apply to this rulemaking because the Service has considered the prior Departmental interpretation and agency practice in developing this rulemaking. We note that even under the prior interpretation of the MBTA, there was no general mechanism to provide for the collection of project-level data on impacts to avian species. . 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. . This analysis examines the potential effect of the rule on small businesses in selected industries. We determine that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same, apply only to actions directed at migratory birds, their nests, or their eggs. The rule of lenity requires ambiguous criminal laws to be Start Printed Page 1156interpreted in favor of the defendants subjected to them. Rather than strict liability, the MBTA would apply a negligence standard to hunters who used fields with loose grain. Enforcement actions have been few since the 2017 M-Opinion, so it would be speculative to assert that this change in policy will result in further significant population declines. Businesses located in States that do not have existing regulations would have the option to reduce or eliminate best management practices without potential litigation. The operative verbs (pursue, hunt, take, capture, kill) are all affirmative acts . As a biological monitor, I presented environmental trainings, conducted pre-activity surveys, conducted BMP inspections, conducted migratory bird surveys, monitored construction within critical . This also includes the . These are the industries that typically incidentally take substantial numbers of birds and that the Service has worked with to reduce those effects. Interpreting the MBTA to criminalize incidental takings raises potential due process concerns. Due to these unknowns, we do not extrapolate cost data to small businesses. In addition, a letter was sent through our regional offices to invite Tribes to engage in this proposed action via the government-to-government consultation process. 668a-d, 703-712, 742a-j-l, 1361-1384, 1401-1407, 1531-1543, 3371-3378; 18 U.S.C. 55 Cong. structure Available at: . Fish and Wildlife Service, Threats to Birds: Migratory Birds MortalityQuestions and Answers, available at https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php (last updated September 14, 2018). Response: The Service is aware of the recent science that demonstrates that North America has lost nearly 3 billion birds over the last 50 years. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. Furthermore, the average number of oil pits per business is unknown. of strict liability for hazardous commercial activity . This confused order of events also hampers a fair public understanding of the agency's proposed action, alternatives, and likely impacts. Nothing in this rulemaking changes the language or purpose of the MBTA. Subsequently, the Service has sought to limit the potential reach of MBTA liability by pursuing enforcement proceedings only against persons who fail to take what the Service considers reasonable precautions against foreseeable risks. documents in the last year. This fact remains true today and takes on new importance with the spread of invasive species and outbreaks. For these reasons, this rule is unlikely to affect a significant number of small entities. The commenter stated that the proposed rule does not facilitate the Service's only authorized action under the statute, which is the authority to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, etc., of such birds, or any part, nest, or egg thereof. See Fish and Wildlife Improvement Act of 1978, Public Law 95-616, sec. Executive Order 13563 reaffirms the principles of E.O. 1990)) (emphasis in original). The distribution and number of oil pits across the United States or across the remaining States is unknown. In making that assumption, M-37041 improperly ignored the meaning and context of the actual acts prohibited by the statute. 85 FR at 5918, February 3, 2020. . We disagree that this rulemaking will have a substantial impact on migratory bird populations when compared to prior agency practice. E.O. documents in the last year, by the Animal and Plant Health Inspection Service Thus, we respectfully decline to adopt the commenter's proposed language. See Ogden at 29 (Historically, the limiting mechanism on the prosecution of incidental taking under the MBTA by non-federal persons has been the exercise of prosecutorial discretion by the FWS.); see generally FMC, 572 F.2d at 905 (situations such as deaths caused by automobiles, airplanes, plate glass modern office buildings or picture windows in residential dwellings . . better and aid in comparing the online edition to the print edition. This action is necessary to improve consistency in enforcement of the MBTA's prohibitions across the country and inform the public, businesses, government agencies, and other entities what is and is not prohibited under the MBTA. Rather, some have argue[d] that Congress expanded the definition of `take' by negative implication since [t]he exemption did not extend to the `operation of industrial facilities,' even though the government had previously prosecuted activities that indirectly affect birds. CITGO, 801 F.3d at 490-91. The Executive Order further states without any uncertainty that the MBTA and its implementing regulations apply to both intentional and unintentional takings of migratory birds. This feature is not available for this document. Changes in design of longline fishing hooks, change in offal management practices, and flagging/streamers on fishing lines. Application of judicial Chevron deference to this rulemaking would provide more certainty than any prior position of the Department by increasing the likelihood that Federal courts will defer to the Service's interpretation. This EIS was open for public comments, and comments focused on these analyses are addressed within the final EIS. 3329; and Convention between the United States of American and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, U.S.-U.S.S.R., Nov. 19, 1976, 29 U.S.T. 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. Comment: Multiple commenters noted that the proposed action removes all incentives for industry to work with the Service. of the issuing agency. However, the conclusion that the taking and killing of migratory birds is a strict-liability crime does not answer the separate question of what acts are criminalized under the statute. The key remains that the actor was engaged in an activity the object of which was to kill or render a bird subject to human control. The Service's Office of Law Enforcement will continue to investigate unauthorized taking and killing of migratory birds resulting from actions directed at migratory birds. To support an argument that the terms take and kill should be read expansively to include incidental conduct, a number of courts including the NRDC court, as well as the prior M-Opinion, focused on the MBTA's direction that a prohibited act can occur at any time, by any means, in any manner to support the conclusion that the statute prohibits any activity that results in the death of a bird, which would necessarily include incidental take. Meridian also located numerous nests . The only contemporaneous changes to section 2 of the MBTA were technical updates recognizing the adoption of a treaty with Japan. Average number of pits per business is unknown. One alternative in the draft EIS covers the expected effects of reverting to the Department's prior interpretation of the statute. The commenters felt this approach strongly suggests that the Service had already reached a conclusion about the outcome of this process and that the NEPA process is nothing more than a formality. That analysis includes comparing the effects of both interpretations. 1997) (MBTA's plain language prohibits conduct directed at migratory birds. Because House Sparrows and European Starlings are exotic species, they are not protected by the Migratory Bird Treaty Act. It is also unknown how many businesses continued or reduced practices to reduce the incidental take of birds since publication of the Solicitor's M-Opinion. Comment: Multiple commenters noted that the process being used for this rulemaking is unconventional. Instead, section 7 requires an agency to analyze the effects of an action on currently listed or proposed-to-be-listed species. This rulemaking will establish a firm position on enforcement of the MBTA as it applies to incidental take and will not provide a moving target. This definition still requires law enforcement to prove intent, which can be just as difficult to prove, just as legally uncertain, and equally burdensome to law enforcement. We have determined that this rule regarding the take of migratory birds will have no effect on species listed under the provisions of the ESA. The agency in essence has already been implementing the underlying policy change that is reflected in the rulemaking without the benefit of public review and comment at the time it made that policy change. 11, 1973)] marked the first case dealing with the issue of incidental take.). The proposed rule would largely make the statute inoperable, thus violating its congressional intent by removing its purpose. The opposite would seem to be true. It should not be viewed as standing in the way of the successful actions the commenter notes. Comment: Multiple commenters supported the proposed action because a clarification of the scope of the MBTA was needed to avoid unnecessary regulation of industry projects. 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