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. .' It can be difficult to detect whether birds or viable eggs are in a cavity. 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. to the courts under 44 U.S.C. Congress enacted the relevant provision in the wake of a case in which the court enjoined specific U.S. Navy live-fire training exercises that incidentally killed migratory birds. However, this rulemaking is not expected to affect significantly those continuing declines. Comment: Multiple commenters opposed the proposed action because recent studies have demonstrated that North American bird populations are facing significant population declines. No data available on how many measures are employed on each vessel. 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. Response: The Service takes its Tribal trust responsibilities seriously and completed government-to-government consultation when requested. & Constr. Response: We constructed the purpose and need in the draft EIS to reflect our proposal to codify the correct interpretation of the MBTA as it relates to incidental take. 252 U.S. 416, 432-33 (1920). Executive Order 13563 reaffirms the principles of E.O. If not, where does the Service anticipate such needed funds will originate? Response: In the draft EIS, we considered an alternative under which the Service would promulgate a regulation defining what constitutes incidental take of migratory birds and subsequently establish a regulatory general-permit framework. We solicited public comments on the proposed rule for 45 days, ending on March 19, 2020. Fish and Wildlife Service. FWS-HQ-MB-2018-0090 and at https://www.doi.gov/solicitor/opinions. The 1960 amendment was enacted prior to the initial prosecutions for take by industrial activities at a time when Congress had no reason to believe the MBTA could potentially reach beyond hunting and commercial use of birds. In Bostock v. Clayton County, the Supreme Court relied on the ordinary meaning of title VII of the Civil Rights Act of 1964, to hold that it is unlawful to discriminate in employment decisions based on individuals' sexual orientation. The rule also presents a false choice between regulatory certainty and implementing the MBTA. Moreover, the views of one Congress regarding the construction of a statute adopted many years before by another Congress are typically given little to no weight, particularly where, as here, the amendments did not disturb the operative language governing the scope of that statute. 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. Its creation was one of the National Audubon Society's first major victories, and in the years since its enactment, the MBTA has saved millions, if not billions, of birds. . informational resource until the Administrative Committee of the Federal It is usually required that you wait for the nest to become inactive (contains no eggs or chicks and is no longer being used by birds for breeding) before destroying it. 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. However, the proposed action is based on a legal interpretation of the MBTA. ' (quoting Third Nat'l Bank, 432 U.S. at 322)). Table 6Best Management Practices Costs by Industry1, Table 7Summary of Economic Effects on Small Businesses. Response: The preamble to this rulemaking exhaustively explains our interpretation of the terms kill and take in MBTA section 2. Tree clearing conducted May 1 to August 31, inclusive, may result in prohibited take under the MBTA. Subscribe now. Developing an authorization program was not within the scope of our proposal. According to the Service, this absence of regulations designed to address incidental take, and the reliance instead on discretionary enforcement, has resulted in regulatory uncertainty and inconsistency, thus necessitating a truly national standard and a uniform approach to implementation of the MBTA. The Government of Canada submitted comments on the draft EIS associated with this rulemaking. The Service proposed to codify the interpretation set forth in Solicitor's Opinion M-37050 and presented reasonable alternatives to that proposal in the associated draft EIS. There is no requirement under the APA to consider alternatives in a proposed rule. Response: This rulemaking has no effect on investigations into conduct directed at migratory birds or the MBTA's criminal felony and baiting provisions that require a specific mental state. Likewise, the Federal Government has sought to distinguish holdings in the habitat-destruction context in the Ninth Circuit. It is also reasonable to conclude that the MBTA's prohibition on killing is similarly limited to deliberate acts that result in bird deaths. wounding, killing, possessing or transporting any migratory bird, nest, egg, or part thereof. Only Congress can amend statutory language. . EPA is a member of the Migratory Bird Conservation Commission, established in 1929 by the passage of the Migratory Bird Conservation Act, which was created and authorized to consider and approve any areas of land and/or water recommended by the . See Rollins, 706 F. Supp. Register, and does not replace the official print version or the official 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 NEPA process provides a broad analysis of the environmental and socioeconomic impacts of reasonable alternatives to the agency's proposal. In this case, the Service appears at the scoping phase to have already selected the outcome it intended to reach. 315, 116 Stat. While it is illegal to collect, possess, or by any means transfer possession of migratory bird nests, the MBTA does not contain any prohibition that applies to the destruction of a bird nest alone (without eggs or birds in it), provided that no possession occurs during destruction. This approach would include creating a definition of extra-hazardous activities and enforcing incidental take when it results from gross negligence. Trades Council, 485 U.S. 568, 575 (1988); cf. Even if they comply with everything requested of them by the Service, they may still be prosecuted, and still found guilty of criminal conduct. 10, 45 Stat. The commenters noted that such deleterious effects are a more than sufficient basis to withdraw the proposed rule (and the underlying Opinion). We continue to provide technical advice when requested regarding application of the MBTA in specific situations. 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 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. Therefore, this rule would not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under E.O. Adopting this regulation ignores that science and fails to protect the environment. For these reasons, this rule is unlikely to affect a significant number of small entities. In the commenters' experience the expenses of taking measures to minimize incidental take are minor and even the fines are minor to small businesses. No Statement of Energy Effects is required. In the Second and Tenth Circuits, the Federal Government can apply the MBTA to incidental take, albeit with differing judicial limitations. 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. documents in the last year, 37 2003). In addition, Federal agencies are required to evaluate their impacts to the environment under NEPA. 701-715) and section 8A(e) of the Endangered Species . 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. For example, some Members anticipated application of the MBTA to children who act `through inadvertence' or `through accident.' The word protection occurs in its first sentence. Id. 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. We summarized and addressed substantive comments received from the Government of Canada in Appendix C of the final EIS. (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). 85 FR at 5918, February 3, 2020. Comment: One commenter noted that the MBTA has not been used against many businesses in court because it has encouraged businesses to self-regulate, to the benefit of people and birds alike, as well as those businesses. . 1978); Ctr. Comment: Multiple Tribes stated that this proposed action violates multiple Tribal-specific treaties, dating back to the mid-1800s. Response: The exchange of diplomatic notes the commenter references occurred in 2008 and did not amount to an agreement that prohibiting incidental take was required by the Convention. Counts are subject to sampling, reprocessing and revision (up or down) throughout the day. 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. Because that which belongs to nobody is acquired by the natural law by the person who first possesses it. [n]o 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. 85 FR at 5922. Below we list some humane, legal actions for controlling or deterring these two species. Additionally, after publication of the final EIS, the Government of Canada submitted a further comment expressing concern regarding this rule. Every effort shall be made by the Contractor not to disturb any nests with eggs or young. Moon Lake, 45 F. Supp. The Court held that when an agency rescinds a prior policy its reasoned analysis must consider the `alternative[s]' that are `within the ambit of the existing [policy].' Active Control. As a result of these cases, the Federal Government is clearly prohibited from enforcing an incidental take prohibition in the Fifth Circuit. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. , the government must prove proximate causation. Moon Lake, 45 F. Supp. There is concern from the commenters that the impact of this proposed rule will be a long-term loss of data and oversight of industrial impacts to avian species. Also included are migratory birds and other species protected by state rules. Table 5 shows the distribution of businesses by employment size and sales. One such contemporary statement cited by the court is a letter from Secretary of State Robert Lansing to the President attributing the decrease in migratory bird populations to two general issues: Representative Baker referenced these statements during the House floor debate over the MBTA, implying that the MBTA was intended to address both issues. This rulemaking will not significantly affect the Service's obligations under other legal statutes that protect migratory birds. We decline to adopt that proposal for the same reasons we rejected application of a gross-negligence standard. 04/17/2023, 151 55 Cong. The Service drafted the proposed rule with sufficient flexibility to incorporate the alternatives analyzed in the draft EIS. . The Court held that this omission alone renders [the agency's] decision arbitrary and capricious. Id. Response: The Service appreciates the perspective of the entities that support this rulemaking. 1311, and Agreement Supplementing the Agreement of February 7, 1936, U.S.-Mex., Mar. Comment: Multiple commenters recommended the Service clarify how the Service will continue to collect project-level data on industrial impacts to birds. We evaluated this regulation in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), and the Department of the Interior Manual (516 DM 8). As noted above, this rule is a significant regulatory action under E.O. Only those businesses choosing to reduce best management practices will accrue benefits. By contrast, Courts of Appeals in the Fifth, Eighth, and Ninth Circuits, as well as district courts in the Third and Seventh Circuits, have indicated that it does not. If anything, this finding argues that the proposed rule is a solution in search of a problem. As shown in Table 6, the costs of actions businesses typically implement to reduce effects on birds are small compared to the economic output of business, including small businesses, in these sectors. Response: The Service has met with its counterparts in Canada regarding the proposed rule. Thus, Congress spoke clearly to the matter of whether the MBTA scope includes incidental takes and kills. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). 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). Of the five referenced verbs, threepursue, hunt, and captureunambiguously require an action that is directed at migratory birds, nests, or eggs. Response: The Service does not agree that the MBTA is the only mechanism to achieve bird conservation. (quoting Black's Law Dictionary 1225 (6th ed. Yet what is legal in the Fifth and Eighth Circuits may become illegal as soon as an operator crosses State lines into the bordering Tenth Circuit or become a matter of uncertainty in the Ninth Circuit. The majority of Minnesota's birds are protected by the federal Migratory Bird Treaty Act of 1918 (MBTA), which prohibits the take of birds, their nests, and/or their eggs, whether intentional or unintentional. 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 Migratory Bird Treaty Act (MBTA; 16 U.S.C. The Service did not receive any industry-related information for further consideration. Both the M-Opinion and the preamble to the proposed rule provide detailed background and analysis that explain why the Solicitor concluded the MBTA does not prohibit incidental take and why the Service adopted that analysis and conclusion. at 697, n.10. See Act of June 1, 1974, Public Law 93-300, 88 Stat. 1990)) (emphasis in original). Response: The proposed rule does not alter the burden of proof for intentional take under the MBTA. 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. 12988, we determined that this rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. An expansive reading of the MBTA that includes an incidental-take prohibition would subject those who engage in these common, and necessary, activities to criminal liability. Implementing legislation for the treaty with the Soviet Union also did not amend section 2. 04/17/2023, 244 When a Secretary of Agriculture does a thing of that kind I have no hesitancy in saying that he is doing a thing that is utterly indefensible, and that the Secretary of Agriculture who does it ought to be driven from office. Article VII allows taking to resolve conflicts under extraordinary conditions when birds become seriously injurious to agricultural or other interests, subject to permits issued by the parties under regulations prescribed by them respectively. See generally United States v. FMC Corp., 572 F.2d 902, 904 (2d Cir. that agencies use to create their documents. on Foreign Affairs, 64th Cong. While unregulated harvesting is no longer a primary threat to migratory birds, declines in bird populations continue to remain a serious international issue. Response: Our commitment to our treaty partners to prevent and mitigate damage to migratory birds from pollution is implemented by several domestic laws. M-37050 concluded that the MBTA does not prohibit incidental take. . The proposed rulemaking extends that practice to the MBTA. The Department's Principal Deputy Solicitor, exercising the authority of the Solicitor pursuant to Secretary's Order 3345, determined in M-37050 that the statute as written does not prohibit incidental take. In addition, a variety of factors would influence whether, under the previous interpretation of the MBTA, businesses would implement such measures. In fact, agencies may codify interpretations struck down by courts and have subsequent courts defer to and uphold the later rulemaking. . Moreover, the M-Opinion, which provided the original basis for this rulemaking, has been publicly available for more than 2 years. should verify the contents of the documents against a final, official As the Supreme Court has instructed, absent contrary indications, Congress intends to adopt the common law definition of statutory terms. United States v. Shabani, 513 U.S. 10, 13 (1994). Comment: Multiple Tribes stated that the United Nations Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP), endorsed by the United States in 2010, recognizes that indigenous people must give Free, Prior and Informed Consent for projects affecting their interests, prior to approval of any project affecting their land or territories. 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: The proposed rule incorrectly concludes that the terms kill and take are ambiguous. 1202. Table 1 lists the industry sectors likely impacted by the rule. 703-712): prohibits the take or attempt to take any parts of a migratory bird, including its nest, eggs, or young. We decline to adopt this proposal for the same reasons we rejected application of a gross-negligence standard. The Service determines the relevant language in section 2 to be ambiguous, which is consistent with the views of most Federal courts. We currently authorize, and will continue to authorize, various activities that directly take migratory birds through our permit regulations at 50 CFR part 21. 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. 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. The preamble to the proposed rule and this final rule provides a detailed analysis of the language of the statute and why the scope of the MBTA does not include incidental take, including the best reading of the ambiguous terms take and kill. We refer the commenter to that analysis, which provides the basis for issuing this regulation. . This analysis first estimates the number of businesses impacted and then estimates the economic impact of the rule. The OFR/GPO partnership is committed to presenting accurate and reliable 703(a). A rulemaking cannot violate a statute or make it inoperable and must be consistent with the legislative intent of the law. The fact that no permit program has ever existed for incidental take demonstrates established precedent. Size distribution of oil pits is unknown. 2d 353 (2020), similarly does not support moving forward with this rulemaking. 4816 (statement of Sen. Smith) (1917). Instead, section 7 requires an agency to analyze the effects of an action on currently listed or proposed-to-be-listed species. The Department appears to be rushing through this entire process to meet an arbitrary timeline. . In 2019, in response to M-Opinion 37050, California passed the Migratory Bird Protection Act, which makes it unlawful to take or possess any migratory nongame bird protected under the MBTA. Response: The Service has provided in the past and will continue to provide in the future technical assistance to interested parties to implement measures to reduce negative effects on migratory birds. We received 8,398 comments. The Migratory Bird Treaty Act of 1918 (MBTA) prohibits taking, attempting to take, capturing, killing, selling/purchasing, possessing, transporting, and importing of migratory birds (including ground-nesting species), their eggs, parts and nests, except when specifically authorized by the Department of the Interior. Therefore nest box monitors are legally allowed to remove or harass them. These markup elements allow the user to see how the document follows the 2d at 1081 (quoting 56 Cong. . 703(a). In reaching this result, the Court squarely rejected the argument that the Court's reading of the statute's expansive terms ignore[d] the legislature's purpose in enacting Title VII and that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. Id. 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. This analysis examines the potential effect of the rule on small businesses in selected industries. That action is directed at birds but does not take them in the common law sense that take means to reduce wildlife to human physical control, and it could also not be fairly characterized as hunting, pursuing, or capturing them either. Fish and Wildlife Service. See Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir. I have never been able to see why you cannot hunt, whether you kill or not. Birds that nest on the ground in sandy or rocky areas are particularly difficult to see and identify, as are birds that nest in trees cavities or holes in the ground. Infeasible to net pits larger than 1 acre due to sagging. 703 et seq. $150 for strategic offal discards Comment: Multiple commenters noted that the proposed action removes all incentives for industry to work with the Service. Netting of oil pits and ponds Closed loop drilling fluid systems, $130,680 to $174,240 per acre to net ponds Cost not available for closed loop drilling fluid systems, but may be a net cost savings in arid areas with water conservation requirements. 1702, amended by the Protocol between the United States and Canada Amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States, U.S.-Can., Dec. 14, 1995, T.I.A.S. This difference is underscored by the recent Federal district court decision vacating the M-Opinion. The authority citation for part 10 continues to read as follows: Authority: See id. Cost not available for wastewater systems. The commenter felt that providing such a take threshold would allow the Service to address incidental take that occurs because of an entity's negligence. In one of the comments, they referenced that the proposed rule cites 500,000 to 1,000,000 deaths per year at oil pits as old and high, suggesting that new technological innovation and State regulations have caused a decrease in oil pit mortality. Pursuant to the federal act, it is unlawful to take, possess, buy, sell, purchase, or barter any migratory bird . Response: The commenters are correct that only Congress can amend the language of the MBTA. Response: The commenter misconstrues our interpretation of the MBTA's criminal misdemeanor provision in section 6. "The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting migratory birds and restoring declining bird populations," said Secretary Deb Haaland. We agree that strict liability applies to misdemeanor violations of the MBTA. However, there needs to be language that allows for the prosecution of individuals who are grossly negligent. We completed an environmental impact statement (EIS) analyzing the potential impacts of a reasonable range of alternatives for this action. Because data are unavailable about the distribution of possible range of measures and costs, we do not extrapolate cost data to small businesses. Comment: Multiple commenters noted that NEPA requires that decisions be analyzed in a public process before an agency irretrievably commits its resources. 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. Table 4 shows the distribution of businesses by employment size and sales. Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act. . The MBTA will continue to operate as Congress intended it to operate. For complete information about, and access to, our official publications Without retaining the legal responsibility by individuals and/or companies under the existing MBTA, there would be far less money available for mitigation of preventable environmental damage. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. 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. Service analysis indicates that the top threats to birds are: U.S. If promulgated, the rule would force Service employees to act as private detectives with the nearly (and from all appearances, deliberately) impossible task of proving what was in the hearts and minds of violators. Response: This rule would not violate any laws or executive branch policy regarding unfunded mandates. 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. "Take" is defined in Section 86 of the California Fish and Game Code as "to hunt, pursue, catch, 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. These cases are also inapposite because they do not interpret the term kill in relation to adjacent, related terms that could be read to limit effectively the scope of kill in its general sense. Deliberate acts that result in prohibited take under the previous interpretation of the final EIS, proposed! Extrapolate cost data to small businesses are unavailable about the distribution of businesses impacted and then the! 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