Comment: One commenter noted that the Service should not rely on other statutes or regulations to absolve itself from addressing incidental take. documents in the last year, 998 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. on Foreign Affairs, 64th Cong. Nor do the owners of electrical lines `take' migratory birds who run into them. There is no requirement under the Administrative Procedure Act (APA) to consider alternatives in the proposed rule itself (Executive Order 12866 requires consideration of alternatives that would have less economic impact on regulated entities for economically significant rulemakings, as set forth in the regulatory impact analysis made available for review with the proposed rule). While every effort has been made to ensure that Because House Sparrows and European Starlings are exotic species, they are not protected by the Migratory Bird Treaty Act. See Scalia & Garner at 195 (The canon especially holds that `words grouped in a list should be given related meanings. Response: This approach would be very similar to establishing a policy to decline enforcement except in cases of gross negligence. Our interpretation of the MBTA is primarily governed by the language of the statute, its legislative history, and subsequent case law. 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. The Service also notes that the motivation to implement conservation measures to mitigate harm to migratory birds is not simply driven by the threat of enforcement. 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. Therefore, this action is not a significant regulatory action under the Unfunded Mandates Reform Act. . Id. We refer the commenter to the EIS for analysis and discussion of the environmental impacts of the proposal and reasonable alternatives. Likewise, Blackstone's Commentaries provide: A man may lastly have a qualified property in animals feroe naturoe, propter privilegium, that is, he may have the privilege of hunting, taking and killing them in exclusion of other persons. Because no take has occurred within the meaning of the MBTA, the strict-liability provisions of the Act would not be triggered. $4,000 initial and $50 annual for side setting. In rural areas, vultures have been known to predate young or vulnerable livestock, which is of great concern . On January 7, 2021, we, the U.S. Unfunded mandates occur when Congress enacts Federal law that includes directives that must be carried out by States and does not also provide funding for the States to fulfill those Federal requirements. For broad statutes that may be applied to seemingly minor or absurd situations, [i]t is no answer to say that the statute would not be applied in such a case. Keyishian v. Bd. Response: The Service's implementation of the Fish and Wildlife Conservation Act is not directly relevant to this rulemaking. In the proposed rule and the NEPA notice of intent, and during the public scoping webinars, the Service requested that new information and data be provided to update our current information on sources and associated magnitude of incidental take. [FR Doc. Response: We disagree that this rulemaking will result in a substantial increase in the number of migratory birds killed. Response: Best management practices (BMPs) have never been required under the MBTA, other than as part of our occasional application of the special purpose permit provision to authorize Start Printed Page 1148incidental take under certain circumstances, as there has never been a specific permit provision for authorizing incidental take that would require their implementation. For example, the Service is working proactively with both the communication tower industry and with Federal agencies, cities, and other municipalities to address tower and glass collisions. 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. It should not be viewed as standing in the way of the successful actions the commenter notes. 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. Data not available for adjustment of turbine construction locations. Response: This rule would not violate any laws or executive branch policy regarding unfunded mandates. 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. 7455 (1918) (statement of Rep. Mondell)). We continue to provide technical advice when requested regarding application of the MBTA in specific situations. Trades Council, 485 U.S. 568, 575 (1988); cf. is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat. 16 U.S.C. The parties to those Conventions may meet to amend and update the provisions of the Conventions, but enactment, amendment, and implementation of domestic laws that implement those Conventions do not require concurrence by the other parties. On August 11, 2020, a district court vacated M-37050, holding that the language of the MBTA plainly prohibits incidental take, despite multiple courts failing to agree on how to interpret the relevant statutory language. The fixed-meaning canon of statutory construction directs that [w]ords must be given the meaning they had when the text was adopted. Scalia & Garner at 78. See Natl. In other statements, various members of Congress expressed concern about sportsmen, people killing birds, shooting of game birds or destruction of insectivorous birds, and whether the purpose of the MBTA was to favor a steady supply of game animals for the upper classes. Moon Lake, 45 F. Supp. Permit holders would have no risk of prosecution provided they comply with the terms of the permit. For these reasons, this rule is unlikely to affect a significant number of small entities. We do not understand the point of the commenter's statement that the absence of a prior permit program established precedent on whether or not the MBTA prohibits incidental take. on The remaining States represent approximately 24 percent of businesses in the crude petroleum and natural gas extraction industry. It is also reasonable to conclude that the MBTA's prohibition on killing is similarly limited to deliberate acts that result in bird deaths. Since the Service does not have a permitting system authorizing incidental take of migratory birds, the Service does not have specific information regarding how many businesses in each sector implement Start Printed Page 1160measures to reduce incidental take of birds. The commenters conclude that the Service should focus enforcement of incidental take on large-scale, high-mortality, and predictable situations where unintentional loss of migratory birds is likely to occur, based on the best scientific information. 605(b). Section 3(a) also requires the Secretary to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions [listed in section 2 between the United States and Canada, Mexico, Russia, and Japan] to adopt such regulations allowing these otherwise-prohibited activities. ), we have determined the following: a. 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. Each document posted on the site includes a link to the Congress intended take to be read consistent with its common law meaningto reduce birds to human control. 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 text and purpose of the MBTA indicate that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same only criminalize actions that are specifically directed at migratory birds, their nests, or their eggs.Start Printed Page 1135. Accordingly, an interpretation with broad implications for the American public was implicitly adopted without public debate. The commenters called for more protections and see the proposed rule as weakening actions for the conservation of migratory birds. An intention found nowhere in its text, legislative history, or subsequent interpretation and implementation. The President of the United States communicates information on holidays, commemorations, special observances, trade, and policy through Proclamations. 703(a) (Unless and except as permitted by regulations made as hereinafter provided . documents in the last year, by the Animal and Plant Health Inspection Service documents in the last year, 82 703-712 (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: As explained by the Fifth Circuit in the CITGO case, the 2003 Authorization Act does not require the conclusion that Congress interpreted the MBTA to apply broadly to incidental take. 2d at 1080-81. The Service will continue to work to develop partnerships with industry sectors to monitor incidental mortality and the stressors causing this mortality, as well as to develop voluntary best practices that industry sectors can implement when they seek to reduce their project-level impacts on the environment. 2015); Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110 (8th Cir. We disagree with the commenter's interpretation of the MBTA and our nondiscretionary and discretionary duties to implement the MBTA. The Service completed these consultations prior to publication of this final rule. We respectfully disagree with that court's opinion and have finalized this rulemaking consistent with the Supreme Court's holding in Brand X. 1582 (Such trust in prosecutorial discretion is not really an answer to the issue of statutory construction in interpreting the MBTA.). Nine Tribes and two Tribal councils requested government-to-government consultation. Comment: Multiple Tribes stated that this proposed action violates multiple Tribal-specific treaties, dating back to the mid-1800s. Congress also recognized that birds benefit American agriculture and forestry through the consumption of vast numbers of insect pests. 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. This rule would not significantly or uniquely affect small government activities. Second, the MBTA only prohibits actions that are directed at migratory birds. This EIS was open for public comments, and comments focused on these analyses are addressed within the final EIS. This regulatory change is not expected to change current implementation or enforcement of the MBTA. If active migratory bird nests are purposefully disturbed on a project site, take the following steps: 1. . Some States may have regulations that require monitoring bird use and mortality at facilities; however, the number of States with regulations is unknown. rendition of the daily Federal Register on FederalRegister.gov does not Federal and State Rules and Statutes Governing Osprey Nest Removal in Minnesota. 804(2)). This also includes the nests, eggs or chicks of protected birds. Table 6Best Management Practices Costs by Industry1, Table 7Summary of Economic Effects on Small Businesses. 252 U.S. 416, 432-33 (1920). This rulemaking will have no effect on those species. If you are using public inspection listings for legal research, you Comment: Multiple commenters claimed that because the new Solicitor's Opinion rests on but does not resolve the Circuit court split indicates that courts are not obligated to adhere to its interpretation. Instead, the action was directed at protecting the farmer's crops from the birds, but not physically possessing or controlling the birds in any way other than killing them. . 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. ' (quoting Third Nat'l Bank, 432 U.S. at 322)). Response: Our interpretation set forth in the proposed rule is that take incidental to the purpose of the action is not prohibited under the MBTA. This approach compromised the ability of commenters reviewing the proposed rule to understand fully the effects of the rule. LEXIS 1110 (D.C. Cir. Closed wastewater systems typically used for reasons other than bird mitigation. DOI and the bureaus do not guarantee that outside websites comply with Section 508 (Accessibility Requirements) of the Rehabilitation Act. under the Endangered Species Act, or any other bird species protected under the Migratory Bird Treaty Act, to the Fish and Wildlife Service Ecological Services Office for the State or location in which the take occurred. As the rest of the sentence clarifies, the hypothetical boy acted without meaning anything wrong, not that he acted unintentionally or accidentally in damaging the robin's nest. and 25% are designated (in whole or in part) as Birds of Conservation Concern (BCC).). Congress was simply acting to preempt application of a judicial decision that specifically and immediately restricted military-readiness activities. The opposite would seem to be true. Response: The Service has complied with the procedural requirements of NEPA for developing an EIS by publishing a scoping notice and a draft EIS inviting public comment before developing a final EIS and record of decision. 2012). . Deliberate implies an intentional act, where foreseeable means consequences that may be reasonably anticipated. 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. 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. Table 6 identifies examples of bird mitigation measures and their associated cost. For example, Webster's defined take to comprise various actions directed at reducing a desired object to personal control: to lay hold of; to seize with the hands, or otherwise; to grasp; to get into one's hold or possession; to procure; to seize and carry away; to convey. Webster's Revised Unabridged Dictionary 1469 (1913). 701-715) and section 8A(e) of the Endangered Species . A, Title III, Sec. 22-23 (1917) (statement of R.W. 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. 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: Our interpretation of the MBTA concludes that the statute does not prohibit incidental take, including any resulting from wind-energy facilities. . 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. 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. 315, 116 Stat. NEPA compliance requires Federal entities to identify impacts to the environment affected by a proposal, including impacts to migratory birds and socioeconomic impacts if they are likely to occur. 13186 remains in place and is a valuable tool for Federal agencies to work cooperatively to implement bird conservation strategies within their agency missions. 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. As is apparent from the record in this case, the Forest Service must comply with a myriad of statutory and regulatory requirements to authorize even the very modest type of salvage logging operation of a few acres of dead and dying trees at issue in this case. Businesses located in the States that do not have existing regulations would have the option to reduce or eliminate best management practices without potential litigation. 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. Public comments submitted on the proposed rule and supplementary documents to the proposed rule, including the environmental impact statement and regulatory impact analysis, may be found at the Federal rulemaking portal http://www.regulations.gov in Docket No. 12630, this rule does not contain a provision for taking of private property, and would not have significant takings implications. Response: The purpose of this action is to provide an official regulatory definition of the scope of the statute as it relates to incidental take of migratory birds. . We did not receive any information on that issue during the public comment period for this rule. Rather, it should extend that comment period by 45 days or more. Comment: Numerous commenters requested that the Service return to the previous interpretation of the MBTA and publish a proposed rule that codifies the former interpretation that the MBTA prohibits incidental take. The mission of the Migratory Bird Permit Program is to promote long-term conservation of migratory birds and their habitats and encourage joint stewardship with others. that I am heartily in sympathy with this legislation. As is the case with the ESA, in the MBTA, [t]he taking prohibition is only part of the regulatory plan . See Canada Convention, 39 Stat. The cases cited by the court in footnote 13 interpreting the term kill do so in the context of criminal homicide, which unsurprisingly interprets kill in the broader sense. 703-712), which implements the above-mentioned treaties. The impact of this on small entities is unknown. The 1936 amendment modified the language to clarify its meaning and application, but there is no indication those changes were intended Start Printed Page 1143to broaden the scope of the statute beyond actions directed at migratory birds. The fact that no permit program has ever existed for incidental take demonstrates established precedent. . Additionally, the NRDC court found no meaningful difference between active and passive definitions of the term kill. The court focused on one possible reading of kill, meaning to deprive of life, which could be construed as either active or passive conduct. Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y. . 04/17/2023, 273 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. Comment: Commenters claimed that the Service must examine the effect the proposed rule would have on certain ESA-listing decisions, such as a not-warranted determination or 4(d) rule, which may have been determined with the understanding that the MBTA incidental take protections would still apply. Response: The Service is aware of the recent science that demonstrates that North America has lost nearly 3 billion birds over the last 50 years. As described in the proposed rule, millions of birds are killed every year from accidents such as collisions with glass windows, power lines, and vehicles. 4, 1972, 25 U.S.T. 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. corresponding official PDF file on govinfo.gov. The environmental consequences of the underlying sweeping policy change, which occurred in M-Opinion 37050, have yet to be held up to the mandates of NEPA. Finally, chimneys lined with metal should always be capped, as birds that enter these can easily become trapped. This also includes the . In making this change, the Senate Report noted that the amendment was not intended in any way to reflect upon the general application of strict liability under the MBTA.. Comment: Multiple commenters noted that M-Opinion 37050 and the proposed action will likely result in increased mortality of migratory birds. 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 government must prove proximate causation. Moon Lake, 45 F. 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