Subsequently, the Service has sought to limit the potential reach of MBTA liability by pursuing enforcement proceedings only against persons who fail to take what the Service considers reasonable precautions against foreseeable risks. Some States have statutes with procedural requirements similar to those found in NEPA (e.g., California Environmental Quality Act) and a variety of provisions regulating some form of incidental, indirect, or accidental take, or potentially allowing commissions or agencies to make applicable rules. Federal Register provide legal notice to the public and judicial notice The trouble is in shooting the ducks in Louisiana, Arkansas, and Texas in the summer time, and also killing them when they are nesting up in Canada. Instead, the MBTA and the Migratory Bird Conservation Act are complementary: Together, the Treaty Act in regulating hunting and possession and the Conservation Act by establishing sanctuaries and preserving natural waterfowl habitat help implement our national commitment to the protection of migratory birds. United States v. North Dakota, 650 F.2d 911, 913-14 (8th Cir. Comment: A commenter stated that the Service has done little to demonstrate how this proposed rule actually benefits birds, instead focusing almost exclusively on economic interests of previously regulated industries. Protect the Nest. We disagree with the commenter's conclusions and refer readers to our analysis in the preamble. 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. If anything, this finding argues that the proposed rule is a solution in search of a problem. . However, the proposed action is based on a legal interpretation of the MBTA. 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. The commenter noted that many stakeholders are engaged in identifying common-sense mitigation measures to minimize remaining impacts from the construction and operation of wind-energy facilities. Response: This rulemaking is based on the Department's interpretation of ambiguous language in a statute the Secretary is charged with implementing and does not amend the language of the MBTA. 65-243, at 2 (1918) (letter from Secretary of State Robert Lansing to the President)). The EIS compares the environmental effects of both alternatives. 04/17/2023, 211 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. 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. Our interpretation of the MBTA is primarily governed by the language of the statute, its legislative history, and subsequent case law. This rule would not significantly or uniquely affect small government activities. Response: Per the National Environmental Policy Act (NEPA), the Service analyzed the impacts mentioned by the commenter within the draft Environmental Impact Statement (EIS) published June 5, 2020. Congress and the executive branch understood this fact a century ago when it signed the 1916 treaty and passed the MBTA, even in the midst of World War I. Additionally, after publication of the final EIS, the Government of Canada submitted a further comment expressing concern regarding this rule. This additional uncertainty should be considered by the Service going forward. Comment: One commenter recommended imposing stricter regulations along main migratory routes where high concentrations of MBTA species are biologically vulnerable (including stopover areas along migration routes, and core breeding/wintering areas), especially for threatened or endangered species or Species of Conservation Concern. Rather, it is the only possible reading of the MBTA that accomplishes its intended purpose. 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. To the extent there are economic impacts associated with this rulemaking or the alternatives considered in the associated NEPA analysis, those are described in the EIS and the regulatory impact analysis conducted to comply with Executive Orders 12866, 13563, and 13771. . Individual States therefore rely on Federal law (and the international treaties implemented by Federal law) to protect their own bird populations when individual birds migrate beyond their boundaries. This confused order of events also hampers a fair public understanding of the agency's proposed action, alternatives, and likely impacts. . Vultures are protected under the Migratory Bird Treaty Act, which prohibits the killing, possession, import, export, sale or purchase of any migratory bird or its parts. The commenter contended that entities that choose not to implement known measures are purposefully taking migratory birds. ' (quoting Third Nat'l Bank, 432 U.S. at 322)). Tree clearing conducted May 1 to August 31, inclusive, may result in prohibited take under the MBTA. Many comments included additional attachments (e.g., scanned letters, photographs, and supporting documents). . We will continue to cooperate with States that request our assistance in developing best management practices for various industries that minimize incidental take of migratory birds. The commenters felt this approach strongly suggests that the Service had already reached a conclusion about the outcome of this process and that the NEPA process is nothing more than a formality. 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. 2d 1070, 1080 (D. Colo. 1999) (the MBTA's legislative history indicates that Congress intended to regulate recreational and commercial hunting); Mahler, 927 F. Supp. Below we list some humane, legal actions for controlling or deterring these two species. This approach would include creating a definition of extra-hazardous activities and enforcing incidental take when it results from gross negligence. 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. the current document as it appeared on Public Inspection on Rather, it appears Congress acted in a limited fashion to preempt a specific and immediate impediment to military-readiness activities. 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 Service will continue to investigate instances of unauthorized taking or killing directed at migratory birds. Adopting this regulation ignores that science and fails to protect the environment. We acknowledge that incidental take of migratory birds has a negative impact on many migratory bird populations and have assessed any incremental impact caused by this rulemaking and its reasonable alternatives in the EIS. Response: The Service works with offshore-wind-energy companies and Federal and State agencies responsible for regulating this industry. This analysis really shows that the benefits of the proposed rule are overblown and targeted to a few companies that just do not want to be regulated. See Canada Convention, 39 Stat. Geer v. Connecticut, 161 U.S. 519, 523 (1896) (quoting Digest, Book 41, Tit. Most bird nests are protected under the Migratory Bird Treaty Act of 1918, making it illegal for civilians to remove or tamper with an active bird's nest. As a matter of both law and policy, the Service hereby adopts the conclusion of M-37050 in a regulation defining the scope of the MBTA. Species protected are listed in 50 C.F.R. . 2012). The majority of these birds are federally protected under the Migratory Bird Treaty Act, which protects the birds, their nests, eggs, and feathers. 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. We refer the commenter to the EIS for analysis and discussion of the environmental impacts of the proposal and reasonable alternatives. Id. The Service acknowledged in the EIS that this rule may result in incremental declines in bird populations as companies learn they are not required to implement best management practices to decrease incidental take. Thus, it removes what had been a Federal requirement for States to avoid engaging in or authorizing activities that incidentally take migratory birds. . Thus, codifying the Service's interpretation of the scope of the MBTA under a gross negligence standard would only serve to reduce legal certainty. Electric Power Distribution (NAICS 221122), Wireless Telecommunications Carriers (except Satellite) (NAICS 517312), Extinguish non-flashing lights on towers taller than 350 Retrofit towers shorter than 350 with LED flashing lights, Industry saves hundreds of dollars per year in electricity costs by extinguishing lights Retrofitting with LED lights requires initial cost outlay, which is recouped over time due to lower energy costs and reduced maintenance. Resources We also note that several Service programs exist that are designed to conserve species that are candidates for ESA listing, such as Candidate Conservation Agreements and the Prelisting Conservation Policy. The critically important ecological services these species provide include insect and rodent control, pollination, and seed dispersal. 703-704. 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. About 135 species of birds breed around Portland. Comment: Multiple commenters noted that NEPA requires that decisions be analyzed in a public process before an agency irretrievably commits its resources. The Department appears to be rushing through this entire process to meet an arbitrary timeline. The rule should be reissued in proposed form, allowing the public to weigh in on the alternatives and on the Service's choice. The Service provided alternatives to the proposed action and has not predetermined any outcome of the NEPA process. 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. Collectively, the change in interpretation of these foundational laws and rules will undoubtedly remove any motivation for regulated entities to mitigate the harm caused by their actions on birds and their eggs and will increase incidental take. structure 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. Because data are unavailable about the distribution of possible range of measures and costs, we do not extrapolate cost data to small businesses. . 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. Though we conclude that this rule will have some negative effects on populations of some species, we do not find that those effects will be substantial. M-37050 and the preamble to the proposed rule explained the basis for the interpretation of the MBTA we are codifying in this rulemaking in great detail referencing the language of the statute itself, the international Conventions underlying the MBTA, its legislative history, and subsequent case law. 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. We have added additional discussion in the final EIS and Regulatory Impact Analysis regarding the types of practices and types of costs associated with best practices. It was viewed 367 times while on Public Inspection. at 745 (dismissing charges against a farmer who applied pesticides to his fields that killed a flock of geese, reasoning [f]armers have a right to know what conduct of theirs is criminal, especially where that conduct consists of common farming practices carried on for many years in the community. The text, history, and purpose of the MBTA demonstrate instead that it is a law limited in relevant part to actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs to human control by killing or capturing. The commenter noted that in 1999, several environmental groups from Mexico, Canada, and the United States filed a submission under the North American Agreement on Environmental Cooperation asserting that the United States was failing to enforce environmental laws, including the MBTA. However, there needs to be language that allows for the prosecution of individuals who are grossly negligent. Comment: The Flyway Councils noted that the proposed rule was brought forth without the proper procedures as outlined by NEPA and the APA. 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. Response: We respectfully disagree that the Service has not justified its current interpretation of the MBTA. 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. 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. On March 16, 2020, the Service held a webinar that was restricted in attendance to allow only Tribal members to attend, with the sole purpose of informing Tribes of the proposed action. Thus, it is unclear what activities are extrahazardous. In FMC, the concept was applied to the manufacture of toxic chemicals, i.e., pesticides. 13186 was not designed to implement the MBTA per se, but rather was intended to govern Federal efforts to conserve migratory birds more broadly. Thus, Congress spoke clearly to the matter of whether the MBTA scope includes incidental takes and kills. We continue to provide technical advice when requested regarding application of the MBTA in specific situations. Comment: The analysis under the Regulatory Flexibility Act shows likely minimal economic benefit to all of the affected businesses. Response: We refer the commenter to the EIS and the regulatory impact analysis for our conclusions regarding the environmental and economic impacts of this rulemaking and its reasonable alternatives on migratory birds and regulated entities. 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. The Flyways noted that there was no advance notice of rulemaking to assess the implications of the proposed rule. . . 703 et seq.) By contrast, the verbs kill and take are ambiguous in that they could refer to active or passive conduct, depending on the context. 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. 04/17/2023, 867 Courts of Appeals in the Second and Tenth Circuits, as well as district courts in at least the Ninth and District of Columbia Circuits, have held that the MBTA criminalizes some instances of incidental take, generally with some form of limiting construction. At the very least, the Department should not be providing the minimum comment period. (quoting Black's Law Dictionary 1225 (6th ed. Comment: Several commenters concluded that the Department of Defense Authorization Act for Fiscal Year 2003 demonstrates that Congress intended the MBTA to prohibit incidental take of migratory birds because it directed FWS and the Department of Defense to develop a regulation authorizing incidental take of migratory birds during military readiness activities. has no substantive legal effect. 541, 549 (W.D. Instead, because the term kill is ambiguous in the context of section 2, we must read kill along with the preceding terms and conclude they are all active terms describing active conduct. in the Senate, Leaders in Recent Successful Fight for the Migratory Bird Treaty Act, BulletinThe American Game Protective Association, July 1918, at 5, explained: Nobody is trying to do anything here except to keep pothunters from killing game out of season, ruining the eggs of nesting birds, and ruining the country by it. Although longline fishing is regulated under the Magnuson-Stevens Act, seabirds are not afforded protection as they do not fall under that statute's definition of bycatch. Not all businesses in each sector incidentally take birds. Thus, it does not rely on the statutory language presented by the commenter. "Take" broadly means to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, transport." The Service will continue to manage and enforce the provisions of the MBTA as they relate to activities directed at migratory birds, including ensuring those holding take permits are accountable for complying with these permits. Comment: A commenter noted that deaths of birds that are preventable and foreseeable are, in the context of the MBTA, negligent. 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