Subsequent legislative history does not undermine a limited interpretation of the MBTA, as enacted in 1918. Comment: Multiple commenters noted that the process being used for this rulemaking is unconventional. Response: We respectfully disagree that the Service has not justified its current interpretation of the MBTA. Response: The effects of this rule have been analyzed in the EIS accompanying this rulemaking. There is nothing in this legislation that authorizes the government to pursue incidental takings charges in other contexts. This approach effectively leaves otherwise lawful and often necessary businesses to take their chances and hope they avoid prosecution, not because their conduct is or even can be in strict compliance with the law, but because the government has chosen to forgo prosecution. M-37050 thoroughly examined the text, history, and purpose of the MBTA and concluded that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions that are directed at migratory birds, their nests, or their eggs. This also includes the . Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y. We note that on August 11, 2020, a district court vacated M-37050 and held that the plain language of the MBTA prohibits incidental take. Williams, Solicitor's Office, Department of Agriculture). If active migratory bird nests are purposefully disturbed on a project site, take the following steps: 1. Moon Lake, 45 F. Supp. Working with others to conserve, protect and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people. It further states [e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . under the Endangered Species Act, or any other bird species protected under the Migratory Bird Treaty Act, to the Fish and Wildlife Service Ecological Services Office for the State or location in which the take occurred. It can be difficult to detect whether birds or viable eggs are in a cavity. The commenter's assertion would be better applied to the Service's prior exercise of enforcement discretion under the former interpretation, which left many regulated entities uncertain whether their conduct violated the MBTA and would be investigated by the Service. 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. When an intentional take permit is issued, conditions of that permit request any information on incidental mortalities that are discovered. 703-712) makes it unlawful to pursue, hunt, kill, capture, possess, buy, sell, purchase, or barter any migratory bird, including the feathers or other parts, nests, eggs, or migratory bird products. at 1749 (citation omitted). The only contemporaneous changes to section 2 of the MBTA were technical updates recognizing the adoption of a treaty with Japan. This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. Despite the phrase incidental take not appearing in either the MBTA or implementing regulations, its protective statutory intent remains clear, as shown by its common and long-time use in Congressional hearings and correspondence, and in inter- and intra-agency communications. Thus, it removes what had been a Federal requirement for States to avoid engaging in or authorizing activities that incidentally take migratory birds. No organizations or persons outside of the Federal Government were given an advance copy of the proposed rule to read before it was published in the Federal Register. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small businesses, small organizations, and small government jurisdictions. Comment: One commenter asked who would be financially responsible to mitigate and/or reverse the effects of an environmental disaster on a large or small scale, to prevent any further incidental takes of birds or their eggs once the disaster is under way. Even if the terms were ambiguous, the proposed rule's attempt to meld all the prohibited conduct into a singular meaning is unsupported by any canon of statutory interpretation. In the draft EIS, we compared the impacts of codifying M-37050 with returning to the prior Opinion's interpretation. electronic version on GPOs govinfo.gov. The rule of lenity requires ambiguous criminal laws to be Start Printed Page 1156interpreted in favor of the defendants subjected to them. An analysis of the amount of funding available for mitigation of environmental damage, including incidental take of migratory birds, would be largely speculative at this point and not directly relevant to this rulemaking. More information and documentation can be found in our The preamble to this rule explains our interpretation of the MBTA's statutory language and legislative history and why the interpretation set forth by this rule is consistent with and the best reading of that language and history. If these species are known to occur in the area, before destroying a nest of this type we recommend consulting with an expert who can help determine whether adults, eggs, or chicks are present. $4,000 one-time cost for underwater setting chute The clause proposed by the commenter would be inconsistent with our interpretation of the Act and would essentially add a requirement to the MBTA. The commenters suggested that the Service modify the proposed rule to include a provision where incidental take resulting from reckless negligent behavior is considered a violation (i.e., gross negligence). The Service will continue to ensure that migratory birds are protected from direct take. Whether Congress deliberately avoided more broadly changing the MBTA or simply chose to Start Printed Page 1140address a discrete problem, the most that can be said is that Congress did no more than the plain text of the amendment means. Id. . But the court was silent as to how far this rule extends, even in the relatively narrow context of pesticides. Add 10.14 to subpart B to read as follows: The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. Response: Incidental take refers to mortality that occurs in the course of an activity that is not directed at birds and often does not relate to birds in any Start Printed Page 1151wayfor example, the intent of building a wind turbine is generating energy not killing birds. at 1745. We respectfully disagree with the district court's decision and have addressed the court's findings where appropriate in the discussion below. It is important to note that the MBTA should not be relied upon by itself to reduce large-scale impacts on migratory bird populations, whether or not it is interpreted to prohibit incidental take. Pa. 1997). 1531 et seq.) 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. The Service selected this alternative because it clarifies our interpretation of the MBTA and reduces the regulatory burden on the public without significantly affecting the conservation of migratory bird species protected by the MBTA. A rulemaking cannot violate a statute or make it inoperable and must be consistent with the legislative intent of the law. The replacement timeline for netting is also variable because hurricanes, strong winds, and strong sun all have deleterious impacts on nets. The Service proposes that kill and take exclude unintentional actions as they are listed among directed actions such as hunt or pursue. Yet this construction renders the list meaningless, working contrary to established norms of interpretationif kill were limited to hunt and pursue, then there would be no need to include hunt and pursue on the list. In rural areas, vultures have been known to predate young or vulnerable livestock, which is of great concern . (4) We reserve the right to suspend or revoke the authority of any agency or individual to undertake It is also noteworthy that those losses occurred despite the Department's prior interpretation of the MBTA as prohibiting incidental take. Response: The proposed rule did not provide a threshold for prohibiting incidental take because it proposed to codify the interpretation set forth in M-37050 that the Act does not prohibit incidental take in the first place. Comment: Multiple commenters recommended that the Service abandon the current proposed action and revert to the previous M-Opinion and the 2015 MBTA proposal for developing and implementing a general permit program that works with industry to identify best practices to avoid or minimize avian mortality. Protection may entail maintaining a safe, We are codifying that interpretation in this rulemaking. 22-23 (1917) (statement of R.W. Comment: One commenter stated that it is notable that no additional alternatives were in the proposed rule. The commenters noted that the proposed rule change is extremely limited in scope as it fails to address the evolution of threats to migratory birds or to ensure the sustainability of healthy bird populations. Not all businesses in each sector incidentally take birds. 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. at 697, n.10. In other statements, various members of Congress expressed concern about sportsmen, people killing birds, shooting of game birds or destruction of insectivorous birds, and whether the purpose of the MBTA was to favor a steady supply of game animals for the upper classes. Moon Lake, 45 F. Supp. 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. In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. The operative language in section 2 of the MBTA has changed little since its adoption in 1918. Comment: One commenter recommended following a Safe Harbor approach for industry that participates in avoidance, minimization, and mitigation measures. 703-712. Thus, in combination with the already significant population declines of many species, the proposed rule will almost certainly result in the need to increase the number of bird species listed under the Endangered Species Act (ESA) and increase the risk of extinction. 3(h), 92 Stat. In addition to the individual comments received, 10 organizations submitted attachments representing individuals' comments, form letters, and signatories to petition-like letters representing almost 180,000 signers. The proposed rulemaking extends that practice to the MBTA. In sum, due process requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent `arbitrary and discriminatory enforcement.' 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. One of the easiest ways that anyone can support bird habitat conservation is by buying duck stamps. documents in the last year, 439 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. Here he has a transient property in these animals usually called game so long as they continue within his liberty, and may restrain any stranger from taking them therein; but the instant they depart into another liberty, this qualified property ceases. 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. at 1574 (The MBTA was designed to forestall hunting of migratory birds and the sale of their parts). FWS-HQ-MB-2018-0090. 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.). . It is also reasonable to conclude that the MBTA's prohibition on killing is similarly limited to deliberate acts that result in bird deaths. Rer. The President of the United States manages the operations of the Executive branch of Government through Executive orders. Comment: The proposed rule contained no information on the consequences of the action on migratory birds and the environment as a whole (through decreased ecosystem services). corresponding official PDF file on govinfo.gov. The MBTA will continue to operate as Congress intended it to operate. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. 13186 was not designed to implement the MBTA per se, but rather was intended to govern Federal efforts to conserve migratory birds more broadly. This approach would include creating a definition of extra-hazardous activities and enforcing incidental take when it results from gross negligence. 1531-44), requires that The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. 16 U.S.C. In addition, the Flyways noted that no alternatives were put forth and there was no opportunity to propose other alternatives. Response: We do not agree with the commenter's assessment of this rulemaking or that available data supports the commenter's analysis of the Service's prior interpretation. 1501 et seq. 55 Cong. 13186 remains in place and is a valuable tool for Federal agencies to work cooperatively to implement bird conservation strategies within their agency missions. Register (ACFR) issues a regulation granting it official legal status. 12866, but the rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Some nests are hard to see and identify, making them more vulnerable to inadvertent destruction. The Service eliminated that alternative from further consideration because developing a general-permit system would be a complex process and better suited to analysis in a separate, subsequent proposal. documents in the last year, 493 2012). Just over 20 years earlier, the Supreme Court in Geer had ruled that the States exercised the power of ownership over wild game in trust, implicitly precluding Federal regulation. 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. The fact that no permit program has ever existed for incidental take demonstrates established precedent. We have found that building partnerships domestically and internationally to build strategies for implementing measures that protect, manage, and conserve migratory birds is a more effective conservation tool than enforcing incidental take under the MBTA on a piecemeal basis with our limited law enforcement resources. The impact of this on small entities is unknown. Nest Removal. Changes in design of longline fishing hooks, change in offal management practices, flagging or streamers on fishing lines, Costs are per vessel per year $1,400 for thawed blue-dyed bait Comment: Multiple commenters noted issues with how the proposed rule and associated NEPA document define a Federal action. The commenters noted that fundamental to this rulemaking effort is to identify properly the major Federal action. The language of the act needs to be changed to protect those who injure birds on a purely accidental basis. The distribution and number of oil pits across the United States or across the remaining States is unknown. 703, Historical and Statutory Notes. Comment: The analysis under the Regulatory Flexibility Act shows likely minimal economic benefit to all of the affected businesses. Government-to-government consultation is one facet of effectuation of the trust responsibility. The Service is the Federal agency delegated the primary responsibility for managing migratory birds. The President of the United States communicates information on holidays, commemorations, special observances, trade, and policy through Proclamations. Therefore, we do not regard our current approach to be inconsistent with the 2008 diplomatic exchange. See Bob Stump National Defense Authorization Act for Fiscal Year 2003, Public Law 107-314, Div. Register, and does not replace the official print version or the official See United States v. FMC Corporation, 572 F.2d 902 (2d Cir. Under this approach, it is literally impossible for individuals and companies to know exactly what is required of them under the law when otherwise-lawful activities necessarily result in accidental bird deaths. The common-law meaning of the term take is particularly important here because, unlike the ESA, which specifically defines the term Start Printed Page 1136take, the MBTA does not define takeinstead it includes the term in a list of similar actions. 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. 703) that make it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill migratory birds, or attempt to engage in any of those actions, apply only to actions directed at migratory birds, their nests, or their eggs. By contrast, the NRDC court interpreted kill more expansively, holding that, in combination with the phrase by any means or in any manner, the MBTA unambiguously prohibits incidental killing. Monitoring bird use and mortality at facilities, limited use of deterrent systems such as streamers and reflectors. A draft EIS, issued subsequent to the proposed rule, analyzed various alternatives, some of which were discussed in the public webinars conducted as part of the NEPA scoping process. The Migratory Bird Treaty Act of 1918 (MBTA), codified at 16 U.S.C. Regarding the future listing of migratory birds as threatened species, as stated in the final rule rescinding the blanket rules for threatened species (84 FR 44753, August 27, 2019) and restated here, our intention is to finalize species-specific section 4(d) rules concurrently with final listing or reclassification determinations. Comment: Commenters claimed that the Service must examine the effect the proposed rule would have on certain ESA-listing decisions, such as a not-warranted determination or 4(d) rule, which may have been determined with the understanding that the MBTA incidental take protections would still apply. An agency has no authority to remove statutory protections without congressional approval. As noted above, this rule is a significant regulatory action under E.O. The 45-day period for commenting on the proposed rule and NEPA scoping process, along with the subsequent 45-day comment period for the draft EIS, provided sufficient time for the public to address this rulemaking. Meridian also located numerous nests . In the Second and Tenth Circuits, the Federal Government can apply the MBTA to incidental take, albeit with differing judicial limitations. Regarding the comments from the Government of Canada, the Service identified the impacts to migratory birds to the extent it was able in the final EIS, based on the information available. Tour routes of great scenic drives on National Wildlife Refuges. This rule does not alter consultation requirements under the ESA for migratory bird species also listed as endangered or threatened species. 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. 2d at 1080-81 (quoting H. Rep. No. Thus, this proposed action would not have any effect on those species. (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). The commenter contended that entities that choose not to implement known measures are purposefully taking migratory birds. The list of birds now protected as `migratory birds' under the MBTA is a long one, including many of the most numerous and least endangered species one can imagine. Mahler, 927 F. Supp. 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. ha[s] no apparent basis in the statute itself or in the prior history of the MBTA's application since its enactment); cf. The Service concludes that it is in its own interest, as well as that of the public, to have and apply a national standard that sets a clear, articulable rule for when an operator crosses the line into criminality. 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. 85 FR at 5918, February 3, 2020. The Migratory Bird Treaty Act (MBTA), signed into law in 1918, is among the oldest wildlife protection laws on the books. Unfunded mandates occur when Congress enacts Federal law that includes directives that must be carried out by States and does not also provide funding for the States to fulfill those Federal requirements. This PDF is Until the ACFR grants it official status, the XML The Service will continue to work to provide recommendations for voluntary measures and siting locations based on sound science. . The commenters noted that such deleterious effects are a more than sufficient basis to withdraw the proposed rule (and the underlying Opinion). 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