electronic version on GPOs govinfo.gov. The notion that take refers to an action directed immediately against a particular animal is supported by the use of the word take in the common law. Under Alternative A, the Service hereby promulgates a regulation that defines the scope of the MBTA take prohibitions to include only actions directed at migratory birds. The Service drafted the proposed rule with sufficient flexibility to incorporate the alternatives analyzed in the draft EIS. 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. Response: This rulemaking has no effect on investigations into conduct directed at migratory birds or the MBTA's criminal felony and baiting provisions that require a specific mental state. 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. The authority in section 3 is also contingent on an understanding of what actions violate the statute in the first place. Section 7 of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. The rule of lenity requires ambiguous criminal laws to be Start Printed Page 1156interpreted in favor of the defendants subjected to them. 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. The proposed rule will harm species that have already been listed as threatened and subject to broad ESA section 4(d) regulations. A Rule by the Fish and Wildlife Service on 01/07/2021. Since then, some of the Nation's governors, State legislatures, and mayors jointly requested a suspension of public comment periods Start Printed Page 1144during this national emergency. The MBTA will continue to operate as Congress intended it to operate. 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. 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. As detailed above, the Service has determined that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions directed at migratory birds, their nests, or their eggs is compelled as a matter of law. Comment: A commenter noted that the proposed rule fails to provide adequate justification under Executive Orders 12866 and 13563 with regard to providing flexible approaches consistent with scientific integrity and protecting the environment. This confused order of events also hampers a fair public understanding of the agency's proposed action, alternatives, and likely impacts. For these reasons, this rule is unlikely to affect a significant number of small entities. Response: We agree with the commenter that this rulemaking will continue to authorize criminal enforcement of intentional take while codifying that the MBTA does not prohibit incidental take. . documents in the last year, 10 M-37050 is available on the internet at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. Response: Our commitment to our treaty partners to prevent and mitigate damage to migratory birds from pollution is implemented by several domestic laws. Industry will likely continue to install flashing obstruction lighting to save energy costs and to comply with recent Federal Aviation Administration Lighting Circular and Federal Communication Commission regulations. Comment: Multiple States commented that the proposed rule would lead to further declines in migratory bird populations. While unregulated harvesting is no longer a primary threat to migratory birds, declines in bird populations continue to remain a serious international issue. 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 . 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. In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. headings within the legal text of Federal Register documents. The States voiced concerns that this rule would increase their species-management burden substantially as further declines in migratory bird populations could result in additional management requirements and protections for declining species, including additional listings under State endangered species protection laws implemented by State fish and wildlife agencies. corresponding official PDF file on govinfo.gov. 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. Congress may simply have chosen to address a discrete problem without any intent to interpret more broadly the MBTA outside of that particular context. We concluded a 45-day comment period was reasonable given the prior opportunity to comment on the scoping notice published on February 3, 2020 (85 FR 5913), and during the associated public hearings, which invited input on the environmental effects of the proposed action and the potential alternatives we should consider. documents in the last year, 124 It is also unknown how many businesses continued or reduced practices to reduce the incidental take of birds since publication of the Solicitor's M-Opinion. Comment: Multiple commenters suggested that compliance with the MBTA was not a burden to State and local governments and has straightforward and minimal impacts on capital-improvement projects. 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). Therefore, these entities will have better information for planning projects and achieving goals. Table 7 summarizes likely economic effects of the rule on the business sectors identified in Table 1. Comment: One commenter stated that in an international forum the United States agreed that the MBTA is a strict-liability statute covering incidental take. Comment: Multiple commenters opposed the proposed rule because, as written, the rule does not hold entities accountable for causing the incidental take of migratory birds. Statements from individual Congressmen evince a similar focus on hunting. Register documents. Register, and does not replace the official print version or the official Within 48 hours, or as soon as possible, provide NRM with an initial assessment of the situation. 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. Even visitation to these rookeries by people getting too close and subsequently disrupting nesting activities, can result in take since young birds may be frightened, leave their nests prematurely, become displaced, and die from starvation as their parents return only to the vicinity of the nest site. Installation of flashing obstruction lighting. 12721; Convention between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, U.S.-Mex., Feb. 7, 1936, 50 Stat. The preamble to this rule explains our interpretation of the MBTA's statutory language and legislative history and why the interpretation set forth by this rule is consistent with and the best reading of that language and history. 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. documents in the last year, 28 Thus, the Service has analyzed the environmental impacts of adopting either opposing interpretation of the MBTA. on Foreign Affairs, 64th Cong. 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. 1501 et seq. 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. 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. The Public Inspection page Businesses located in States that do not have existing regulations would have the option to reduce or eliminate best management practices without potential litigation. The scope of prohibited conduct covers actions, which require intentpursue, hunt, and capture are all actions directed at wildlife and cannot be performed by accident. Only Congress can amend statutory language. The 1960 amendment was enacted prior to the initial prosecutions for take by industrial activities at a time when Congress had no reason to believe the MBTA could potentially reach beyond hunting and commercial use of birds. The commenters claimed that the rule communicates that for even the most egregious and demonstrably deliberate violations, violators' real-world liability will still be limited by Service funding, investigatory resources and expertise, and political will with respect to enforcement. LEXIS 1110 (D.C. Cir. See Griffin v. Oceanic Contractors, 458 U.S. 564, 575 (1982) (interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available); see also K Mart Corp. v. Cartier, 486 U.S. 281, 324 n.2 (1988) (Scalia, J. concurring in part and dissenting in part) (it is a venerable principle that a law will not be interpreted to produce absurd results.). 1990)) (emphasis in original). Those laws require the Forest Service to manage national forests so as to balance many competing goals, including timber production, biodiversity, protection of endangered and threatened species, human recreation, aesthetic concerns, and many others.). 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. Collisions with wind turbines, which kill an estimated 234 thousand birds per year. Fish and Wildlife Service (FWS, Service, we), define the scope of the Migratory Bird Treaty Act (MBTA or Act) as it applies to conduct resulting in the injury or death of migratory birds protected by the Act. No public comments received to estimate costs. 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. 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. 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. Comment: A commenter stated that the prosecution of incidental take under the MBTA does not violate due process. Trades Council, 485 U.S. 568, 575 (1988); cf. documents in the last year, by the Animal and Plant Health Inspection Service Courts have adopted different views on whether section 2 of the MBTA prohibits incidental take, and, if so, to what extent. 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. The Service has sought to involve and consult with Tribes regarding this rulemaking. The commenter noted that the MBTA should be given a uniform interpretation across all regions of the country and is appreciative that the Service is engaging in a rulemaking process to achieve this result. The commenters called for more protections and see the proposed rule as weakening actions for the conservation of migratory birds. 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. 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. Response: We have chosen to codify the interpretation set forth in Solicitor's Opinion M-37050 and interpret the scope of the MBTA to exclude incidental take. The President of the United States communicates information on holidays, commemorations, special observances, trade, and policy through Proclamations. . The commenter contended that entities that choose not to implement known measures are purposefully taking migratory birds. 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. That does not mean, however, that Congress intended for strict liability to apply to all forms of human activity, such as cutting a tree, mowing a hayfield, or flying a plane. 1202. The Service is a conservation organization and will continue to address bird-conservation priorities in a manner that provides for the most effective conservation of protected species, such as working with domestic and international partners to conserve habitat and habitat connectivity, addressing threats both anthropogenic and natural, developing partnerships with Federal, State, and Tribal agencies, industry and NGOs that address the greatest conservation needs, and effectively implementing the array of Federal statutes that provide protections for migratory birds. The critically important ecological services these species provide include insect and rodent control, pollination, and seed dispersal. However, the term kill can be read purely as an active verb, meaning, to put to death; to slay. When contrasted with the more passive definition as the general term for depriving of life, the difference is clear. Data not available for adjustment of turbine construction locations. This table of contents is a navigational tool, processed from the Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (Act; 16 U.S.C. This type of uncertainty is problematic under the Supreme Court's due process jurisprudence. 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). One of the alternatives reverts to the prior interpretation of the MBTA described in Solicitor's Opinion M-37041. Assistant Secretary for Fish and Wildlife and Parks. FWS-HQ-MB-2018-0090. This fact remains true today and takes on new importance with the spread of invasive species and outbreaks. In fact, agencies may codify interpretations struck down by courts and have subsequent courts defer to and uphold the later rulemaking. As with the 1916 Canada Convention, the Mexico Convention focused primarily on hunting and establishing protections for birds in the context of take and possession for commercial use. To a certain extent, some degree of short-term uncertainty is to be expected when a change in agency practice occurs. The rule should be reissued in proposed form, allowing the public to weigh in on the alternatives and on the Service's choice. regulatory information on FederalRegister.gov with the objective of Thus, it is unlikely that the Service's implementation of voluntary measures will result in benefits to birds. No organizations or persons outside of the Federal Government were given an advance copy of the proposed rule to read before it was published in the Federal Register. [FR Doc. Comment: One commenter stated that as a result of the Federal Circuit Court split and dueling Solicitor's opinions, and without MBTA regulations addressing what activities are prohibited under the MBTA, the same activities that are entirely lawful in some parts of the country could give rise to strict criminal liability in parts of the country in which Federal Circuit Courts have held that unintentional take is prohibited under the MBTA. Cal. Changes in design of longline fishing hooks, change in offal management practices, flagging or streamers on fishing lines, Costs are per vessel per year $1,400 for thawed blue-dyed bait Response: There are many other factors that influence an entity's decision to implement measures that may protect migratory birds from incidental take. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. To pretend otherwise ignores the agency's own established practices and guidance and constitutes another failure of the Federal Government's trust responsibilities. Damage to migratory birds additionally, the term kill can be read purely an... U.S. 239, 253 ( 2012 ) fact remains true today and takes on new with! Analyzed the environmental impacts of adopting either opposing interpretation of the United communicates! 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