1311 (Feb. 7, 1936) (Mexico Convention). should verify the contents of the documents against a final, official Courts have adopted different views on whether section 2 of the MBTA prohibits incidental take, and, if so, to what extent. . We decline to adopt this proposal for the same reasons we rejected application of a gross-negligence standard. Federal Register issue. Comment: One commenter suggested that the proposed rule should be abandoned because the meanings of take and kill need to be given broad interpretations to achieve the remedial purpose of protecting wildlife and remain consistent with the common law definitions of these terms. at 1754. These efforts would require increased expenditure of funds, but would not constitute direct compliance costs. Section 2 of the MBTA groups together five verbspursue, hunt, take, capture, and kill. Accordingly, the statutory construction canon of noscitur a sociis (it is known by its associates) counsels in favor of reading each verb to have a related meaning. The Public Inspection page Thus, it removes what had been a Federal requirement for States to avoid engaging in or authorizing activities that incidentally take migratory birds. In addition, a variety of factors would influence whether, under the previous interpretation of the MBTA, businesses would implement such measures. 260; Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and their Environment, U.S.-Japan, Mar. In accordance with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and the Department of the Interior's manual at 512 DM 2, we considered the possible effects of this rule on federally recognized Indian Tribes. In these cases, there may be no typical nest 2d at 1081 (quoting 56 Cong. Developing an authorization program was not within the scope of our proposal. . This rule addresses the Service's responsibilities under the MBTA. 42; 19 U.S.C. 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. We have developed this rule in a manner consistent with these requirements. 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). The due process concerns we raise in the preamble to this regulation apply to the Department's prior interpretation of section 2 of the MBTA, rather than the criminal provisions of section 6. documents in the last year, 124 The United States Government announced its support of the UNDRIP in 2010. The Migratory Bird Treaty Act is the primary legislation protecting native birds in the United States and one of this country's earliest environmental laws. Articles II through IV of the Convention create closed periods during which hunting of migratory species covered by the Convention may be authorized only for limited purposes, such as scientific use Start Printed Page 1139or propagation. Id. Response: Our commitment to our treaty partners to prevent and mitigate damage to migratory birds from pollution is implemented by several domestic laws. from 35 agencies. 2509 (2002), reprinted in 16 U.S.C.A. Response: We respectfully disagree that the Service has not justified its current interpretation of the MBTA. The Service received many responses during the public comment period for the proposed rule from migratory bird experts and interested non-governmental organizations. However, the Service continues to work with the bird conservation community to identify, support, and implement bird-monitoring programs. 510 (E.D. L. 79-404, 60 Stat. These can be useful LEXIS 1110 (D.C. Cir. Response: The Service recognizes that there are numerous reasons why an entity would continue to implement best practices, including other Federal or State laws, industry standard practices, public perception, etc. 2002), vacated on other grounds sub nom. This approach compromised the ability of commenters reviewing the proposed rule to understand fully the effects of the rule. Document page views are updated periodically throughout the day and are cumulative counts for this document. Resources informational resource until the Administrative Committee of the Federal The commenter suggested that, without such thresholds, the MBTA will be rendered meaningless. Subscribe now. For example, 13 States have oil pit covering requirements. 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 . Any attempt to permanently weaken the MBTA, which will perpetuate, and almost certainly increase, the level of injury and death of migratory birds, needs concurrence by Canada, Mexico, Japan, and Russia if our treaty obligations are to have any true meaning. of the issuing agency. Voluntary efforts and development of industry best practices are an indispensable part of this approach, particularly given that the substantial decreases in migratory bird populations over the last 50 years have occurred despite the prior agency practice of enforcing the MBTA with respect to incidental take. Thus, in our view, the M-Opinion was neither final agency action nor major Federal action. Average number of pits per business is unknown. on Foreign Affairs, 64th Cong. . Comment: If the press release accepted quotes from industry and government entities, it should also have included quotes and perspectives from environmental NGOs or ornithologists to comply with APA fairness rules. Service analysis indicates that the top threats to birds are: U.S. It is not part of the official APA rulemaking process or docket and plays no part in the agency's ultimate decision. . . Testimony concerning the MBTA given by the Solicitor's Office for the Department of Agriculture underscores this focus: We people down here hunt [migratory birds]. (4) We reserve the right to suspend or revoke the authority of any agency or individual to undertake 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. We respectfully disagree with the district court's decision and have addressed the court's findings where appropriate in the discussion below. The MBTA states that unless permitted, it is unlawful to . This rule is deregulatory in nature and is thus likely to have a positive economic impact on all regulated entities, and many of these entities likely qualify as small businesses under the Small Business Administration's threshold standards (see Table 1). But the court was silent as to how far this rule extends, even in the relatively narrow context of pesticides. 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. 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. Except for the baiting of game birds, the MBTA is a strict liability statute that allows for the imposition of criminal penalties. This is clear evidence of the longstanding U.S. position under international law, and in agreement with its treaty partners, that the MBTA is a strict-liability statute covering incidental take. Providing a regulatory approach such as a permitting program or a program based upon a gross negligence approach Start Printed Page 1159would fulfill the Treaty obligations while also satisfying the intent of E.O.s 12866 and 13563. This rule is an E.O. Although we conclude on balance that this correct interpretation of the MBTA will reduce regulatory uncertainty created by the prior agency practice of reliance on enforcement discretion, we acknowledged in our draft EIS that different State laws may create difficulties for national companies that must navigate those differences. Comment: Although the MBTA was written in large part to address the then-largest threat to migratory birdshunters and poachersthe proposed rule offers no evidence to show its passage was intended to regulate only the activities that threatened birds in 1918. The court even suggested that these statements, which anticipated application of the Start Printed Page 1138MBTA to children who act `through inadvertence' or `through accident,' supported a broader reading of the legislative history. 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. 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. 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. Furthermore, the average number of oil pits per business is unknown. b. Register (ACFR) issues a regulation granting it official legal status. 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. Nor do the owners of electrical lines `take' migratory birds who run into them. of strict liability for hazardous commercial activity . the current document as it appeared on Public Inspection on wounding, killing, possessing or transporting any migratory bird, nest, egg, or part thereof. See Natl. Congress intended take to be read consistent with its common law meaningto reduce birds to human control. Ind. Comment: Multiple commenters were concerned about the unorthodox approach of simultaneously publishing a draft rule and a NEPA scoping announcement and seeking comments on both at the same time. 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. Professional sweeps should know that swifts are protected under the Migratory Bird Treaty Act, and anyone who knowingly destroys birds or nests that might contain eggs or young can be fined or penalized. Response: The UNDRIPwhile not legally binding or a statement of current international lawhas both moral and political force. . Pursue means [t]o follow with a view to overtake; to follow eagerly, or with haste; to chase. Webster's Revised Unabridged Dictionary 1166 (1913); Hunt means [t]o search for or follow after, as game or wild animals; to chase; to pursue for the purpose of catching or killing., Capture means [t]o seize or take possession of by force, surprise, or stratagem; to overcome and hold; to secure by effort., Habitat destruction, described generally as the extension of agriculture, and particularly the draining on a large scale of swamps and meadows; and, Hunting, described in terms of improved firearms and a vast increase in the number of sportsmen.. High variability in cost and need to retrofit power poles. 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. Response: We disagree that this rulemaking will result in a substantial increase in the number of migratory birds killed. Geer v. Connecticut, 161 U.S. 519, 523 (1896) (quoting Digest, Book 41, Tit. Response: The EIS associated with this rulemaking analyzes the difference between adopting an interpretation of the MBTA that excludes incidental take and the prior interpretation that the MBTA prohibits incidental take. 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. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. The word protection occurs in its first sentence. 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. The Service disagrees that this rulemaking restricts the meaning and intent of the MBTA. We are codifying that interpretation in this rulemaking. The MBTA fails this test. We disagree with the commenter's interpretation of the MBTA and our nondiscretionary and discretionary duties to implement the MBTA. 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. . States remain free to prohibit, manage, or regulate incidental take of migratory birds as they see fit under State law, and nothing in this regulation or the MBTA prevents them from doing so. Comment: One commenter suggested amending the proposed regulatory Start Printed Page 1147language by adding: provided that the person, association, partnership, or corporation takes reasonably practicable precautionary measures to prevent the taking or killing of migratory birds. With effective protection, the drafters wanted to be able to revive and sustain completely decimated populations on behalf of the Americans who recognized aesthetic, economic, and recreational value in sustaining migratory bird populations. . The NRDC court countered that referencing different manners of taking birds does not give effect to the by any means and in any manner language, but instead clarifies the term hunt because the referenced activities are primarily different means of hunting. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. Due to the biological and behavioral characteristics of some migratory bird species, destruction of their nests entails an elevated risk of violating the MBTA. 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. Comment: One commenter requested that the Service remember their treaty obligation to protect birds that are shared with other countries that as independent nations could not ensure the protection of species that migrate across borders. We solicited public comments on the proposed rule for 45 days, ending on March 19, 2020. Accordingly, the guidelines do not provide enforceable legal protections for people and businesses who abide by their terms. This regulatory change is not expected to change current implementation or enforcement of the MBTA. Comment: One commenter stated that it is notable that no additional alternatives were in the proposed rule. This rule may reduce the incentive for affected parties to implement these guidelines. The commenter asked whether the Service will be establishing a fund to step in for cleanup and incidental take mitigation when environmental mishaps occur. In the draft EIS, we compared the impacts of codifying M-37050 with returning to the prior Opinion's interpretation. regulatory information on FederalRegister.gov with the objective of One alternative in the draft EIS covers the expected effects of reverting to the Department's prior interpretation of the statute. Removal of inactive nests is allowed in most locations without the need for a permit. Rer. Table 5Solar Electric Power Generation NAICS 221114: Employment Sizes and Sales1. & Constr. Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (Act; 16 U.S.C. Response: The Service announced the scoping process in a notice of intent (NOI) to complete an EIS in the Federal Register on February 3, 2020 (85 FR 5913). The commenter stated that this ruling and analysis further undermine the Service's justification for reversing course on many decades of prior policy and practice in implementing the MBTA. . As Table 6 shows, the cost of pre- and post-construction bird surveys is unknown because data are not publicly available and public comments were not received to estimate costs. This confused order of events also hampers a fair public understanding of the agency's proposed action, alternatives, and likely impacts. 55 Cong. 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. 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. documents in the last year, 1416 703-712 (although 709 is omitted), is a United States federal law, first enacted in 1918 to implement the convention for the protection of migratory birds between the United States and Canada. 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. To a certain extent, some degree of short-term uncertainty is to be expected when a change in agency practice occurs. 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. nests, by a bird species protected under the MBTA during previous inspections. 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. However, that argument was rejected by a subsequent district court. 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. Comment: One commenter stated that the removal of Federal authority to regulate incidental take of migratory birds could strongly affect offshore-wind siting and management decisions. This rulemaking will not affect those investigations. We do not rely on an argument that section 2's application to incidental take would demonstrate ambiguity simply because Congress could not have foreseen that application in 1918. documents in the last year, 18 Comment: One commenter stated that this rule represents a fundamental abdication of the Service's mission to protect native wild birds. Federal regulation of hunting was also legally tenuous at that time. However, the quoted statutory language does not change the nature of those prohibited acts and simply clarifies that activities directed at migratory birds, such as hunting and poaching, are prohibited whenever and wherever they occur and whatever manner is applied, be it a shotgun, a bow, or some other creative approach to deliberately taking birds. . In accordance with E.O. See id. For example, some Members anticipated application of the MBTA to children who act `through inadvertence' or `through accident.' In the Second and Tenth Circuits, the Federal Government can apply the MBTA to incidental take, albeit with differing judicial limitations. The Supreme Court has recognized that [a] fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). 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