Because House Sparrows and European Starlings are exotic species, they are not protected by the Migratory Bird Treaty Act. The rulemaking will not change those investigations in any way or require our officers to prove anything in addition to what they already would have to prove. There is no requirement under the APA to consider alternatives in a proposed rule. These species are protected under the Migratory Bird Treaty Act (1918) based on their international importance. In any event, the views of the 2003 Congress in a rider to an appropriation act that did not even explicitly amend any of the MBTA's language have little if any significance to interpreting the MBTA. Nor do the owners of electrical lines `take' migratory birds who run into them. 703 et seq.) 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 works with offshore-wind-energy companies and Federal and State agencies responsible for regulating this industry. Response: Our interpretation of the MBTA concludes that the statute does not prohibit incidental take, including any resulting from wind-energy facilities. We also sent a letter through our regional offices inviting Tribes to engage in this proposed action via the government-to-government consultation process. 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. Response: This rulemaking does not present a false choice between regulatory certainty and implementing the MBTA. 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. In the Second and Tenth Circuits, the Federal Government can apply the MBTA to incidental take, albeit with differing judicial limitations. 01/05/2021 at 11:15 am. The proposal would essentially be adding language to the MBTA given our interpretation that it does not prohibit incidental take. on Many other methods of hunting, capturing, pursuing, taking, or killing birds no doubt exist, and that is precisely the point. (quoting Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302 (9th Cir. Therefore, it is probable these finfish businesses may reduce bird mitigation measures such as changes in design of longline fishing hooks, change in offal management practices, and flagging or streamers on fishing lines. From the Winter 2022 issue of Living Bird magazine. We disagree with the commenter's conclusions and refer readers to our analysis in the preamble. at 5922-23; see also draft EIS at 3 (stating that the purpose and need for the action is to improve consistency in enforcement of the MBTA's prohibitions). 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. Average number of pits per business is unknown. Comment: The Flyway Councils noted that the proposed rule was brought forth without the proper procedures as outlined by NEPA and the APA. Response: The Service has met with its counterparts in Canada regarding the proposed rule. Response: We note that a primary purpose of codifying the interpretation presented in M-37050 is to provide more certainty and permanence regarding the Department's position on the scope of the MBTA as it relates to incidental take. These efforts would require increased expenditure of funds, but would not constitute direct compliance costs. Comment: Multiple commenters noted that the purpose and need of the rule is to create legal certainty and that this rulemaking removes a patchwork of court decisions that create uncertainty for MBTA compliance. Based upon the text, history, and purpose of the MBTA, and consistent with decisions in the Courts of Appeals for the Fifth, Eighth, and Ninth circuits, there is an alternative interpretation that avoids these concerns. (4) We reserve the right to suspend or revoke the authority of any agency or individual to undertake The Service will continue to investigate instances of unauthorized taking or killing directed at migratory birds. The States own and hold migratory birds in trust for their citizenry. For example, pursuant to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), the Oil Pollution Act, and the Clean Water Act, the Department is authorized to assess injury to natural resources caused by releases of hazardous substances and discharges of oil to compensate the public for lost natural resources and their services. 703-712), which implements the above-mentioned treaties. The commenter is essentially proposing adopting an extra-hazardous activity requirement as a proxy for negligence or gross negligence. 510 (E.D. Nothing in this rulemaking changes the language or purpose of the MBTA. Many other Federal statutes include provisions that require implementing agencies to assess and mitigate potential environmental impacts, including impacts to migratory birds and their habitat. In the Eighth Circuit, the Federal Government has previously sought to distinguish court of appeals rulings limiting the scope of the MBTA to the habitat-destruction context. Comment: Multiple commenters stated that the proposed rule is likely to facilitate a substantial increase in the number of migratory birds killed, in direct conflict with the amended treaty with Canada. The Service completed these consultations prior to publication of this final rule. 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. 104-28 (Dec. 14, 1995) (outlining conservation principles to ensure long-term conservation of migratory birds, amending closed seasons, and authorizing indigenous groups to harvest migratory birds and eggs throughout the year for subsistence purposes); Protocol between the Government of the United States of America and the Government of the United Mexican States Amending the Convention for Protection of Migratory Birds and Game Mammals, Sen. Treaty Doc. As a result of these cases, the Federal Government is clearly prohibited from enforcing an incidental take prohibition in the Fifth Circuit. Williams, Solicitor's Office, Department of Agriculture). . Comment: One commenter stated that in an international forum the United States agreed that the MBTA is a strict-liability statute covering incidental take. . Here, an attempt to impose liability for acts that are not directed at migratory birds raises just such constitutional concerns. The OFR/GPO partnership is committed to presenting accurate and reliable Response: The procedures followed in this rulemaking process were appropriate and lawful. This approach compromised the ability of commenters reviewing the proposed rule to understand fully the effects of the rule. Thus, it is unlikely that the Service's implementation of voluntary measures will result in benefits to birds. Birds have economic and ecosystem services value, and, if birds continue to decline, the economy and ecosystems will be compromised. Birds protected under the Migratory . However, there needs to be language that allows for the prosecution of individuals who are grossly negligent. The commenters noted that despite efforts to prevent incidental take, such take is not one-hundred-percent preventable and criminalizing incidental take does not advance conservation efforts. 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. In the absence of a permit issued pursuant to Departmental regulation, it is not clear that the Service has any authority under the MBTA to require minimizing or mitigating actions that balance the environmental harm from the taking of migratory birds with other societal goals, such as the production of wind or solar energy. The Department and the Service cannot ethically, legally, or morally make enforcement of Federal law a moving target for the convenience of the regulated industry. Pursuant to the Comprehensive Environmental Response Compensation and Liability Act, the Oil Pollution Act, and the Clean Water Act, the Department is authorized to assess injury to natural resources caused by releases of hazardous substances and discharges of oil to compensate the public for lost natural resources and their services. 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. 1978); Ctr. 2010) (concluding that under an incidental take interpretation, [t]he actions criminalized by the MBTA may be legion, but they are not vague). However, the economic impact of the rule on small entities is likely not significant. We will explain that selection in a record of decision at the appropriate time. We solicited public comments on the proposed rule for 45 days, ending on March 19, 2020. If not, where does the Service anticipate such needed funds will originate? The authority to implement a statute necessarily comes with it the authority either to interpret ambiguous language in that statute or to correct a prior improper interpretation of that statute. at 1754. This rule would not significantly or uniquely affect small government activities. Rec. Many other factors are often at play for companies engaged in actions that may affect migratory birds, including public perception, green business credentials, economic factors, State law, and pressure from investors and lenders. Because the proposed alternative would have established a minimum mens rea of gross negligence before the Service could enforce the statute's misdemeanor provision, it would not be legally defensible. In addition, the Flyways noted that no alternatives were put forth and there was no opportunity to propose other alternatives. 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.' These distinctions are inherent in the nature of the word `taking' and reveal the strict liability argument as a non-sequitur. 801 F.3d at 493. The Service will take a reasonable amount of time to address and incorporate comments as necessary, deliberate on a final determination, and select an alternative presented in the final EIS. Given the success of the MBTA to date, the commenter felt the proposed action was unnecessary. 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. Exceptions are allowed for hunting . Certainly, other Federal laws may require consideration of potential impacts to birds and their habitat in a way that furthers the goals of the Conventions' broad statements. 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. Table 6Best Management Practices Costs by Industry1, Table 7Summary of Economic Effects on Small Businesses. Furthermore, the average number of oil pits per business is unknown. Federal Register issue. See Lilley & Firestone at 1181 (In the early 1970s, United States v. Union Texas Petroleum [No, 73-CR-127 (D. Colo. Jul. Justice Gorsuch in Bostock was quite clear that legislative intent is only irrelevant if the language of the statute is plain, as he found the applicable language of the Civil Rights Act to be. Therefore, as a matter of both law and policy, the Service adopts a regulation limiting the scope of the MBTA to actions that are directed at migratory birds, their nests, or their eggs, and clarifying that 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. 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 . Accordingly, the guidelines do not provide enforceable legal protections for people and businesses who abide by their terms. He noted that a statute's application may reach `beyond the principle evil' legislators may have intended or expected to address, Bostock, 140 S. Ct. 1731, 1749, but only where no ambiguity exists in the broadness of that statutory language. This rule may reduce the incentive for affected parties to implement these guidelines. The Act provides that, subject to and to carry out the purposes of the treaties, the Secretary of the Interior is authorized and directed to determine when, to what extent, and . The Federal Indian trust responsibility is a continuing fiduciary duty and legal obligation owed by the Federal Government to Tribes as beneficiaries. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). Ctr. 4647 (Nov. 19, 1976) (Russia Convention). Section 7 of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1559 (S.D. The commenters noted there is a successful history of the Federal, State, and local governments along with industry working in coordination to implement measures to reduce impacts to migratory birds and that the proposed rule would dismantle the extraordinary and successful history of this cooperation. We also note that this problem already exists in large part and do not expect this rulemaking to significantly contribute to inconsistencies in State laws. Pursuant to the federal act, it is unlawful to take, possess, buy, sell, purchase, or barter any migratory bird . . (emphasis added)). 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. The U.S. The Service engaged the NEPA process at the time it began to consider rulemaking to codify the M-Opinion (the reasonable alternatives include potential outcomes of the proposed rulemaking), and that process will be complete before any final formal agency decision is made. $4,000 initial and $50 annual for side setting. 2d at 1085. The statutory context of the MBTA would make little sense if it merely prohibited directed action such as hunting because its purpose extends beyond conserving game birds. . Rec. All of these actions could foreseeably result in the deaths of protected birds, and all would be violations of the MBTA under the now-withdrawn M-Opinion if they did in fact result in deaths of protected birds, yet none of these actions have as their object rendering any animal subject to human control. 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. These potentially absurd results are not ameliorated by limiting the definition of incidental take to direct and foreseeable harm as some courts have suggested. Every effort shall be made by the Contractor not to disturb any nests with eggs or young. 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. To impose a limit on the activities it could regulate under the MBTA would be to ossify this Start Printed Page 1146broadly written protection into only applying to activities that existed during the decade immediately following its passage. 3501 et seq.) Table 6 identifies examples of bird mitigation measures and their associated cost. Co., 269 U.S. 385, 391 (1926)). Comment: Multiple Tribes stated that this proposed action violates multiple Tribal-specific treaties, dating back to the mid-1800s. The proposed rule would largely make the statute inoperable, thus violating its congressional intent by removing its purpose. The action has not been otherwise designated by the Administrator of OIRA as a significant energy action. Table 2 shows the distribution of businesses by employment size and average annual payroll. The EIS associated with this rulemaking analyzes the broader effects of codifying our interpretation. Information about this document as published in the Federal Register. . Developing an authorization program was not within the scope of our proposal. 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). See, e.g., U.S. Thus, [a] conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained `fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.' We summarized and addressed substantive comments received from the Government of Canada in Appendix C of the final EIS. As Table 6 shows, oil pit nets range in cost from about $131,000 to $174,000 per acre, where most netted pits are about 1/4 to 1/2 acre. Response: There is no statutory or other legal requirement to wait for a Departmental legal opinion or any other agency opinion to be vetted in Federal court before it can be codified as a regulation. The Migratory Bird Treaty Act of 1918 It is illegal to disturb an active nest, even if it is in an inconvenient location (like this morning dove nest on construction equipment), without a permit from the U.S. FWS and sometimes from the State also. 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. We will also continue to monitor bird populations in partnership with State wildlife agencies and other stakeholders. 2. 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. at 375. 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. For these reasons, this rule is unlikely to affect a significant number of small entities. 605(b). Comment: One commenter in support of the proposed rule noted that there are other statutes that protect birds, including NEPA; industry would still have to comply with some of these laws and thus birds would benefit. Counts are subject to sampling, reprocessing and revision (up or down) throughout the day. The Department should not be putting additional burdens on the public to respond at a time when the public is dealing with a global pandemic. Nests of bald and golden eagles are also always protected under the Bald and Golden Eagle Protection Act. Response: The Supreme Court's decision in Bostock is not applicable to our interpretation of the MBTA. However, Federal courts are obliged to defer to an agency's reasonable interpretation of ambiguous statutory language if that interpretation is codified in a regulation that undergoes public notice and comment under the Administrative Procedure Act. . 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. Such an interpretation could lead to absurd results, which are to be avoided. Such specificity would not have been difficult to draft into the statute). This rule would not produce a Federal mandate on local or State government or private entities. 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. Neotropical Migratory Birds are defined as species whose breeding area includes the North American temperate zones and that migrate in many cases south of the continental United States during nonbreeding seasons (Hunter et al 1993). It was not until more than 50 years after the initial adoption of the MBTA and 25 years after the Mexico Treaty Act that Federal prosecutors began applying the MBTA to incidental actions. "In reference to your request for documentation for the removal of an active Osprey nest from the light pole at the soccer field, please be advised that none exist. Response: The procedures followed in this rulemaking process were appropriate and lawful. Prosecutions for incidental take occurred in the 1970s without any accompanying change in either the underlying statute or Service regulations. 703-712. documents in the last year. 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. For example, the removal of active nests when the purpose of the underlying activity is not to harm birds but related to another activity, such as construction or cleaning, has created confusion and a major loophole. Document page views are updated periodically throughout the day and are cumulative counts for this document. The Service must consider how its proposed interpretation is consistent with that diplomatic exchange and seek Canada's views on the Service's new interpretation in light of that exchange. The proposed rule uses the commonly understood definition of incidental and does not purport to redefine that term in any way. By contrast, the verbs kill and take are ambiguous in that they could refer to active or passive conduct, depending on the context. This site displays a prototype of a Web 2.0 version of the daily These are the industries that typically incidentally take substantial numbers of birds and that the Service has worked with to reduce those effects. 16 U.S.C. . Legal observers have also suggested that this policy may not be permanent, and one analysis noted that entities would be wise to keep a long-term perspective of MBTA-related risk. The commenters noted that rather than providing certainty into the enforcement of the law, the M-Opinion and this rulemaking may have increased uncertainty about what will be expected for industries, especially as many development decisions need to be made considering many years and decades into the future. 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