. We currently authorize, and will continue to authorize, various activities that directly take migratory birds through our permit regulations at 50 CFR part 21. Cable & Telecommunications Ass'n v. Brand X internet Svcs., 545 U.S. 967 (2005). 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. Comment: Some commenters suggested that the interpretation of the MBTA set forth in the proposed rule is flawed and does not account for the mission of the Department and the Service. The Service completed these consultations prior to publication of this final rule. The proposed rule uses the commonly understood definition of incidental and does not purport to redefine that term in any way. 1978); Ctr. Due to these unknowns, we do not extrapolate cost data to small businesses. These three separate 45-day periods provided sufficient time for the public to address this rulemaking. the Federal Register. 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. 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. 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. 742, 744-45 (D. Idaho 1989) (The statute itself does not state that poisoning of migratory birds by pesticide constitutes a criminal violation. "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." While statutes do not have to be drafted with `mathematical certainty,' they must be drafted with a `reasonable degree of certainty.' Migratory Bird Treaty Act (16 U.S.C. The proposed rule impermissibly excludes requirements of foreseeability and negligence by arguing that the statute only prohibits actions directed at birds to exempt industries whose projects kill birds incidentally. The impact of this on small entities is unknown. $4,600 for Tori line High variability in number of wells drilled per year (21,200 in 2019). The Service has sought to justify the reversal on the grounds that, [w]hile the MBTA does contemplate the issuance of permits authorizing the taking of wildlife . Codification in the Code of Federal Regulations provides the maximum certainty and permanence possible absent new legislation, over which we have no control. However, there needs to be language that allows for the prosecution of individuals who are grossly negligent. Response: The procedures followed in this rulemaking process were appropriate and lawful. Immediately notify the district environmental coordinator and NRM. The Migratory Bird Treaty Act (MBTA; 16 U.S.C. The commenters stated that the rule ignores the real major Federal action and agency decision of greatest consequence: The Service's reliance on Interior's M-Opinion 37050 to reverse course on decades of protections for migratory birds against incidental take. Response: We disagree with the commenter's interpretation of the MBTA. The Service will continue to investigate instances of unauthorized taking or killing directed at migratory birds. By contrast, liability fails to attach to actions that are not directed toward rendering an animal subject to human control. 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. Changes in design of longline fishing hooks, change in offal management practices, and flagging/streamers on fishing lines. Response: The effects of this rule have been analyzed in the EIS accompanying this rulemaking. 2d 161 (D.D.C. 1990)) (emphasis in original). Many other methods of hunting, capturing, pursuing, taking, or killing birds no doubt exist, and that is precisely the point. Interpreting the MBTA to criminalize incidental takings raises potential due process concerns. 703-712): prohibits the take or attempt to take any parts of a migratory bird, including its nest, eggs, or young. at 1081 (quoting 56 Cong. 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. Comment: Multiple commenters noted that the codification of the Solicitor's M-Opinion 37050 is premature as it has not been fully vetted or withstood legal challenges. 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. 1991))); United States v. CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. The MBTA fails this test. 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. 04/17/2023, 867 2d at 1213. Therefore, these entities will have better information for planning projects and achieving goals. Further, the subsequent publication and comment period on the draft EIS was after-the-fact, indicating a decision was already made regardless of the environmental consequences determined in the EIS. Williams, Solicitor's Office, Department of Agriculture). 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. . . 6113, 6128). . The Supreme Court's result and reasoning are impossible to square with a central justification for the proposed rule and M-Opinion 37050 on which it is based. This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 2015), which only holds that the MBTA does not impose strict liability for nonculpable omissions. The President of the United States issues other types of documents, including but not limited to; memoranda, notices, determinations, letters, messages, and orders. The EIS examined the impacts of this rulemaking and specifically compared the environmental impacts of adopting each interpretation of the MBTA to inform the decisionmaker of the consequences of adopting either alternative. Further, as a practical matter, inconsistency and uncertainty are built into the MBTA enforcement regime by virtue of a split between Federal Circuit Courts of Appeals. 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. An analysis of the amount of funding available for mitigation of environmental damage, including incidental take of migratory birds, would be largely speculative at this point and not directly relevant to this rulemaking. Something temporarily or permanently constructed, built, or placed; and constructed of natural or manufactured parts including, but not limited to, a building, shed, cabin, porch, bridge, walkway, stair steps, sign, landing, platform, dock, rack, fence, telecommunication device, antennae, fish cleaning table, satellite dish/mount, or well head. In seeking to take a broader view of congressional purpose, the Moon Lake court looked to other contemporary statements that cited the destruction of habitat, along with improvements in firearms, as a cause of the decline in migratory bird populations. 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 . 715-715s). .' The authority to implement a statute necessarily comes with it the authority both to interpret ambiguous language in that statute and to correct a prior improper interpretation of that language. 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. [T]he ambiguous terms `take' and `kill' in 16 U.S.C. In this rulemaking, the Service describes these various protections, but does not rely on them to address incidental take of migratory birds in the absence of MBTA protection. 927 F. Supp. Comment: The Service must complete a full analysis of the impacts of the Solicitor's M-Opinion itself, not just the incremental impacts of codifying the M-Opinion. developer tools pages. We will also continue to work with other Federal agencies and stakeholders to promote conservation measures that reduce incidental take and protect migratory bird habitat, consistent with the Federal statutes we implement to manage, conserve, and protect migratory birds and other wildlife. Protections and Prohibitions Nests used or built by state-Threatened birds must be protected from destruction or disturbance that constitutes take including harm or harassment while they are active. The Service must explain how the proposed rule meets and affects its own responsibilities and those of other Federal agencies under this Executive Order. 703-704. 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. We will continue to implement these programs consistent with our treaty obligations. Deliberate implies an intentional act, where foreseeable means consequences that may be reasonably anticipated. Permits are seldom granted. Some States may have regulations that require monitoring bird use and mortality at facilities; however, the number of States with regulations is unknown. But the court was silent as to how far this rule extends, even in the relatively narrow context of pesticides. This analysis first estimates the number of businesses impacted and then estimates the economic impact of the rule. documents in the last year, by the Animal and Plant Health Inspection Service 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. Comment: Multiple commenters noted that the proposed action removes all incentives for industry to work with the Service. offers a preview of documents scheduled to appear in the next day's . 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 commenter notes that enforcement of the MBTA under such an extreme interpretation would have devastating consequences for American businesses and communities, particularly in rural communities in close proximity to migratory bird habitat. Comment: A few commenters stated that the Department of the Interior's reinterpretation of the MBTA removed a broad layer of protection to birds against industrial harms and requested that the Service explain in the preamble how such action compounds or alleviates the findings of certain reports and other available science and biological dataincluding but not limited to data from Partners in Flight, the State of the Birds report, Christmas Bird Counts, Breeding Bird Surveys, and project-level nesting and demographic information that the Service has on file. The commenter noted that the current administration is relaxing a number of regulations such as the Clean Water Act and the Endangered Species Act. 3110. We refer the commenter to the EIS for analysis and discussion of the environmental impacts of the proposal and reasonable alternatives. The Service has provided a Regulatory Impact Analysis with the proposed rule, which provides a cost-benefit analysis of the rule along with reasonable alternatives, to comply with Executive Order 12866 and certifies that the rule will not have a significant economic impact on a substantial number of small entities to comply with the Regulatory Flexibility Act. Response: The proposed rule does not alter the burden of proof for intentional take under the MBTA. Furthermore, the average number of oil pits per business is unknown. Register documents. Instead, the language of MBTA's section 2 is inherently ambiguous in nature as it relates to incidental take for the reasons stated in the preamble to this rulemaking and as evidenced by the split in Federal appellate courts that have addressed the issue. Response: The procedures followed in this rulemaking process were appropriate and lawful. 703-712) makes it unlawful to pursue, hunt, kill, capture, possess, buy, sell, purchase, or barter any migratory bird, including the feathers or other parts, nests, eggs, or migratory bird products. Tree clearing conducted May 1 to August 31, inclusive, may result in prohibited take under the MBTA. Thirteen States have regulations governing the treatment of oil pits, such as netting or screening of reserve pits, including measures beneficial to birds. 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. at 374, 375 (citation omitted). 1536(a)(2). Fish and Wildlife Service published a final rule to revoke the prior Trump Administration's action that removed incidental take from the regulatory authority of the Migratory Bird Treaty Act. Nor do the owners of electrical lines `take' migratory birds who run into them. 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. regulatory information on FederalRegister.gov with the objective of This rule does not affect the prohibitions under the ESA, and thus species listed under that statute would continue to be covered by all the protections accorded listed species under the ESA. LEXIS 1110 (D.C. Cir. Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (Act; 16 U.S.C. We will not hold entities accountable for take that does not violate the MBTA. The Service continues to be willing and able to work with any entity that is interested in developing and implementing voluntary measures that will avoid or minimize impacts to migratory birds. At the very least, the Department should not be providing the minimum comment period. 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 prior M-Opinion posited that amendments to the MBTA imposing mental state requirements for specific offenses were only necessary if no mental state is otherwise required. We disagree that this rulemaking will have a substantial impact on migratory bird populations when compared to prior agency practice. The vast majority of entities in these sectors are small entities, based on the U.S. Small Business Administration (SBA) small business size standards. Second, the MBTA only prohibits actions that are directed at migratory birds. Only Congress can enact or amend statutory language. Accordingly, the Service initiated government-to-government consultation via letters signed by Regional Directors and completed the consultations before issuing this final rule. Therefore, we do not regard our current approach to be inconsistent with the 2008 diplomatic exchange. Statements from individual Congressmen evince a similar focus on hunting. 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. Response: The Service acknowledges that birds are currently in decline. To be sure, Congress may draft statutory language to include potential future concerns not readily predicted at the time of enactment, but there is no indication that Congress intended the language of section 2 to encompass accidental or incidental deaths of migratory birds. [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. Response: Congress's primary concern when enacting the MBTA in 1918 was hunting, poaching, and commercial overexploitation of migratory birds. 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. 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. 703 et seq. M-37050 concluded that the MBTA does not prohibit incidental take. Nothing in this rulemaking changes the language or purpose of the MBTA. The Service's approach to incidental take prior to 2017 was implemented without public input and has resulted in regulatory uncertainty and Start Printed Page 1142inconsistency. documents in the last year, by the Environmental Protection Agency The U.S. Thus, the Sweet Home majority's ultimate conclusion that Congress's decision to define take in the ESA obviated the need to divine its common-law meaning is inapplicable here. Even if the terms were ambiguous, the proposed rule's attempt to meld all the prohibited conduct into a singular meaning is unsupported by any canon of statutory interpretation. 13186 was not designed to implement the MBTA per se, but rather was intended to govern Federal efforts to conserve migratory birds more broadly. 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. 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. . These treaties established the Federal Government's trust responsibility to Federally Recognized Tribes. Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y.). The provisions of the 1916 Canada Convention authorize only certain circumscribed activities specifically directed at migratory birds. at 1583 n.9 (noting that the FMC court's limiting principle . 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. It is not required for projects to submit data on incidental take; however, we encourage proponents voluntarily to submit these data so that we are able to track bird mortality. Response: We disagree with the commenter on the import and context of the language at any time, by any means or in any manner in section 2 of the MBTA. It is also illegal for anyone to keep a nest they take out of a tree or find on the ground unless they have a permit to do so issued by the U.S. 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. M-37050 is available on the internet at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. One of the most important ways to minimize avian impacts from wind-energy development and make it bird-friendly is to site projects properly and implement measures to avoid impacts. More information and documentation can be found in our There has been no express delegation of law-making duties or authority to amend the MBTA. Finally, in 1918, Federal regulation of the hunting of wild birds was a highly controversial and legally fraught subject. . Closed loop drilling fluid systems typically used for reasons other than bird mitigation. Focusing on that difference and reading the term kill in relation to the other prohibited actions in section 2 before it, there is a compelling reason to read the term kill in an active sense. Accordingly, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Fox Television, 567 U.S. at 253 (quoting Connally v. General Constr. which are directed immediately and intentionally against a particular animalnot acts or omissions that indirectly and accidentally cause injury to a population of animals. Sweet Home, 515 U.S. at 719-20 (Scalia, J., dissenting) (agreeing with the majority opinion that certain terms in the definition of the term take in the Endangered Species Act (ESA)identical to the other prohibited acts referenced in the MBTArefer to deliberate actions, while disagreeing that the use of the additional definitional term harmused only in the ESAmeant that take should be read more broadly to include actions not deliberately directed at covered species); see also United States v. CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. 703 et seq.) 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. The U.S. Supreme Court has ruled that the interpretation of a statute that would lead to absurd results must be avoided in favor of other interpretations consistent with the legislative purpose.. In addition, the industry uses these guidelines to aid in reducing effects on other regulated species like eagles and threatened and endangered bats. Any likely impacts of a Federal action on migratory bird species also listed under the ESA would require consultation whether or not incidental take of that species is prohibited under the MBTA. 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. The Service's proposal does not even address its actual statutory authority. structure Congress specifically demonstrated its familiarity with the development of take liability in 1998 when it tackled the unfairness of strict liability in baiting cases. 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. export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof." See 16 U.S.C. Some courts have attempted to interpret a number of floor statements as supporting the notion that Congress intended the MBTA to regulate more than just hunting and poaching, but those statements reflect an intention to prohibit actions directed at birdswhether accomplished through hunting or some other means intended to kill birds directly. 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. This PDF is Rather, it should extend that comment period by 45 days or more. . Table 2 shows the distribution of businesses by employment size and average annual payroll. This rule will not create substantial direct effects or compliance costs on State and local governments or preempt State law. 1702. . In the draft EIS, we compared the impacts of codifying M-37050 with returning to the prior Opinion's interpretation. A, Title III, Sec. 20080 Before the House Comm. We conducted the NEPA analysis at the appropriate time to analyze the environmental effects of this rulemaking to codify that interpretation. "Take" is defined in Section 86 of the California Fish and Game Code as "to hunt, pursue, catch, This also includes the . Likewise, the Federal Government has sought to distinguish holdings in the habitat-destruction context in the Ninth Circuit. 315, 116 Stat. 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. Some nests are hard to see and identify, making them more vulnerable to inadvertent destruction. 04/17/2023, 151 Learn more here. If an industry sector has new or different information, we encourage them to submit those data to the Service for review and consideration. The commenters noted that the Executive Order defines take consistent with the Service's general definition applicable to all wildlife statutes in 50 CFR 10.12. . 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