[Federal Register Volume 86, Number 4 (Thursday, January 7, 2021)]
[Rules and Regulations]
[Pages 1134-1165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00054]
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Vol. 86
Thursday,
No. 4
January 7, 2021
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 10
Regulations Governing Take of Migratory Birds; Final Rule
Federal Register / Vol. 86 , No. 4 / Thursday, January 7, 2021 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 10
[Docket No. FWS-HQ-MB-2018-0090; FF09M22000-201-FXMB1231090BPP0]
RIN 1018-BD76
Regulations Governing Take of Migratory Birds
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. 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. We determine 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.
DATES: This rule is effective February 8, 2021.
ADDRESSES: 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. FWS-HQ-MB-2018-0090.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director,
Migratory Birds, at 202-208-1050.
SUPPLEMENTARY INFORMATION:
Background
The Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703 et seq.) was
enacted in 1918 to help fulfill the United States' obligations under
the 1916 ``Convention between the United States and Great Britain for
the protection of Migratory Birds.'' 39 Stat. 1702 (Aug. 16, 1916)
(ratified Dec. 7, 1916) (Migratory Bird Treaty). The list of applicable
migratory birds protected by the MBTA is currently codified in title 50
of the Code of Federal Regulations at 50 CFR 10.13. In its current
form, section 2(a) of the MBTA provides in relevant part that, unless
permitted by regulations, it is unlawful:
at any time, by any means or in any manner, to pursue, hunt, take,
capture, kill, attempt to take, capture, or kill, possess, offer for
sale, sell, offer to barter, barter, offer to purchase, purchase,
deliver for shipment, ship, export, import, cause to be shipped,
exported, or imported, deliver for transportation, transport or
cause to be transported, carry or cause to be carried, or receive
for shipment, transportation, carriage, or 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. . . .
16 U.S.C. 703(a).
Section 3(a) of the MBTA authorizes and directs the Secretary of
the Interior to ``adopt suitable regulations'' allowing ``hunting,
taking, capture, killing, possession, sale, purchase, shipment,
transportation, carriage, or export of any such bird, or any part,
nest, or egg thereof'' while considering (``having due regard to'')
temperature zones and ``distribution, abundance, economic value,
breeding habits, and times and lines of migratory flight of such
birds.'' 16 U.S.C. 704(a). 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.
Id.; see also Convention between the United States and Great Britain
for the Protection of Migratory Birds, U.S.-Gr. Brit., Aug. 16, 1916,
39 Stat. 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. 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. 1311, and Agreement Supplementing the
Agreement of February 7, 1936, U.S.-Mex., Mar. 10, 1972, 23 U.S.T. 260;
Convention between the Government of the United States of America and
the Government of Japan for the Protection of Migratory Birds and Birds
in Danger of Extinction, and their Environment, U.S.-Japan, Mar. 4,
1972, 25 U.S.T. 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. 4647.
On December 22, 2017, the Principal Deputy Solicitor of the
Department of the Interior, exercising the authority of the Solicitor
pursuant to Secretary's Order 3345, issued a legal opinion, M-37050,
``The Migratory Bird Treaty Act Does Not Prohibit Incidental Take'' (M-
37050 or M-Opinion). The Solicitor's interpretation marked a change
from prior U.S. Fish and Wildlife Service interpretations and an
earlier Solicitor's Opinion, M-37041, ``Incidental Take Prohibited
Under the Migratory Bird Treaty Act.'' The Office of the Solicitor
performs the legal work for the Department of the Interior, including
the U.S. Fish and Wildlife Service (hereafter ``Service''). The Service
is the Federal agency delegated the primary responsibility for managing
migratory birds.
M-37050 thoroughly examined the text, history, and purpose of the
MBTA and concluded that the MBTA's prohibitions on pursuing, hunting,
taking, capturing, killing, or attempting to do the same apply only to
actions that are directed at migratory birds, their nests, or their
eggs. 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. Natural Res. Defense Council v. U.S. Dep't
of the Interior, 2020 WL 4605235 (S.D.N.Y.). The Department of Justice
filed a notice of appeal on October 8, 2020. We respectfully disagree
with the district court's decision and have addressed the court's
findings where appropriate in the discussion below. Moreover, M-37050
is consistent with the Fifth Circuit appellate court decision in United
States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), which
held that the MBTA does not prohibit incidental take.
This rule addresses the Service's responsibilities under the MBTA.
Consistent with the language and legislative history of the MBTA, as
amended, and relevant case law, the Service defines the scope of the
MBTA's prohibitions to reach only actions directed at migratory birds,
their nests, or their eggs.
Provisions of the Final Rule
Scope of the Migratory Bird Treaty Act
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.
M-37050 is available on the internet at the Federal eRulemaking Portal:
http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090 and at
https://www.doi.gov/solicitor/opinions.
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.
[[Page 1135]]
The relevant portion of the MBTA reads, ``it shall be unlawful at
any time, by any means or in any manner, to pursue, hunt, take,
capture, kill, attempt to take, capture, or kill . . . any migratory
bird, [or] any part, nest, or egg of any such bird.'' 16 U.S.C. 703(a).
Of the five referenced verbs, three--pursue, hunt, and capture--
unambiguously require an action that is directed at migratory birds,
nests, or eggs. To wit, according to the entry for each word in a
contemporary dictionary:
Pursue means ``[t]o follow with a view to overtake; to
follow eagerly, or with haste; to chase.'' Webster's Revised Unabridged
Dictionary 1166 (1913);
Hunt means ``[t]o search for or follow after, as game or
wild animals; to chase; to pursue for the purpose of catching or
killing.'' Id. at 713; and
Capture means ``[t]o seize or take possession of by force,
surprise, or stratagem; to overcome and hold; to secure by effort.''
Id. at 215.
Thus, one does not passively or accidentally pursue, hunt, or
capture. Rather, each requires a deliberate action specifically
directed at achieving a goal.
By contrast, the verbs ``kill'' and ``take'' are ambiguous in that
they could refer to active or passive conduct, depending on the
context. See id. at 813 (``kill'' may mean the more active ``to put to
death; to slay'' or serve as the general term for depriving of life);
id. at 1469 (``take'' has many definitions, including the more passive
``[t]o receive into one's hold, possession, etc., by a voluntary act''
or the more active ``[t]o lay hold of, as in grasping, seizing,
catching, capturing, adhering to, or the like; grasp; seize;--implying
or suggesting the use of physical force'').
Any ambiguity inherent in the statute's use of the terms ``take''
and ``kill'' is resolved by applying established rules of statutory
construction. First and foremost, when any words ``are associated in a
context suggesting that the words have something in common, they should
be assigned a permissible meaning that makes them similar.'' Antonin
Scalia & Bryan A. Garner, Reading the Law: The interpretation of Legal
Texts, 195 (2012); see also Third Nat'l Bank v. Impac, Ltd., 432 U.S.
312, 321 (1977) (``As always, `[t]he meaning of particular phrases must
be determined in context' . . . .'' (quoting SEC v. Nat'l Sec., Inc.,
393 U.S. 453, 466 (1969)); Beecham v. United States, 511 U.S. 368, 371
(1994) (the fact that ``several items in a list share an attribute
counsels in favor of interpreting the other items as possessing that
attribute as well''). Section 2 of the MBTA groups together five
verbs--``pursue,'' ``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. See Scalia & Garner at 195 (``The canon
especially holds that `words grouped in a list should be given related
meanings.''' (quoting Third Nat'l Bank, 432 U.S. at 322)).
Thus, when read together with the other active verbs in section 2
of the MBTA, the proper meaning is evident. The operative verbs
(``pursue, hunt, take, capture, kill'') ``are all affirmative acts . .
. which are directed immediately and intentionally against a particular
animal--not 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 MBTA--refer to deliberate actions, while disagreeing that the use
of the additional definitional term ``harm''--used only in the ESA--
meant 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. 2015) (``Even
if `kill' does have independent meaning [from `take'], the Supreme
Court, interpreting a similar list in the [Endangered Species Act],
concluded that the terms pursue, hunt, shoot, wound, kill, trap,
capture, and collect, generally refer to deliberate actions''); cf.
Sweet Home, 515 U.S. at 698 n.11 (Congress's decision to specifically
define ``take'' in the ESA obviated the need to define its common-law
meaning). We explain the meaning of the terms ``take'' and ``kill'' in
the context of section 2 in turn below.
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. As the Supreme Court has instructed,
``absent contrary indications, Congress intends to adopt the common law
definition of statutory terms.'' United States v. Shabani, 513 U.S. 10,
13 (1994). As Justice Scalia noted, ``the term [`take'] is as old as
the law itself.'' Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting).
For example, the Digest of Justinian places ``take'' squarely in the
context of acquiring dominion over wild animals, stating:
[A]ll the animals which can be taken upon the earth, in the sea,
or in the air, that is to say, wild animals, belong to those who
take them. . . . Because that which belongs to nobody is acquired by
the natural law by the person who first possesses it. We do not
distinguish the acquisition of these wild beasts and birds by
whether one has captured them on his own property [or] on the
property of another; but he who wishes to enter into the property of
another to hunt can be readily prevented if the owner knows his
purpose to do so.
Geer v. Connecticut, 161 U.S. 519, 523 (1896) (quoting Digest, Book
41, Tit. 1, De Adquir. Rer. Dom.). 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. Here
he has a transient property in these animals usually called game so
long as they continue within his liberty, and may restrain any
stranger from taking them therein; but the instant they depart into
another liberty, this qualified property ceases.
Id. at 526-27 (1896) (quoting 2 Blackstone Commentary 410).
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. 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).
Thus, under common law ``[t]o `take,' when applied to wild animals,
means to reduce those animals, by killing or capturing, to human
control.'' Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting); see
also CITGO, 801 F.3d at 489 (``Justice Scalia's discussion of `take' as
used in the Endangered Species Act is not challenged here by the
government . . . because Congress gave `take' a broader meaning for
that statute.''). As is the case with the ESA, in the MBTA, ``[t]he
taking prohibition is only part of the regulatory plan . . ., which
covers all stages of the process by which protected wildlife is reduced
to man's dominion and made the object of profit,'' and, as such, is ``a
term of art deeply embedded in the statutory and common law concerning
wildlife'' that ``describes a class of acts (not omissions) done
directly and intentionally (not indirectly and by accident) to
particular animals (not populations of animals).'' Sweet Home, 515 U.S.
at 718 (Scalia, J., dissenting). The common-law meaning of the term
``take'' is particularly important here because, unlike the ESA, which
specifically defines the term
[[Page 1136]]
``take,'' the MBTA does not define ``take''--instead it includes the
term in a list of similar actions. 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. See id. at 697, n.10. Instead, the opposite is true. Congress
intended ``take'' to be read consistent with its common law meaning--to
reduce birds to human control.
It is also reasonable to conclude that the MBTA's prohibition on
killing is similarly limited to deliberate acts that result in bird
deaths. See Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d
110, 115 (8th Cir. 1997) (``MBTA's plain language prohibits conduct
directed at migratory birds. . . . [T]he ambiguous terms `take' and
`kill' in 16 U.S.C. 703 mean `physical conduct of the sort engaged in
by hunters and poachers. . . .' '' (quoting Seattle Audubon Soc'y v.
Evans, 952 F.2d 297, 302 (9th Cir. 1991))); United States v. CITGO
Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. 2015) (``there is
reason to think that the MBTA's prohibition on `killing' is similarly
limited to deliberate acts that effect bird deaths'').
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. The
court centered its reading of section 2 around its conclusion that any
means of killing migratory birds is prohibited, whether the killing is
the result of an action directed at a migratory bird or wholly the
result of passive conduct. While the term ``kill'' can certainly be
interpreted broadly in a general sense, we disagree that ``kill''
should take on its most expansive meaning in the context of section 2
of the MBTA.
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. 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. 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.
That is, all the words before the word ``kill'' are active verbs. Thus,
the NRDC court erred in conflating the active and passive definitions
of the word ``kill'' and finding no meaningful difference between the
two. 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. 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. 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.
The NRDC district court predicated its broad reading of ``kill''
primarily on the notion that a narrower reading would read the term out
of the Act by depriving it of independent meaning. The court reasoned
that it is difficult to conceive of an activity where ``kill'' applies,
but ``hunt'' and ``take'' do not. To the contrary, there are several
situations where ``kill'' retains independent meaning. For example,
consistent with a product's usage as authorized by the Environmental
Protection Agency and based on its intended usage, a farmer could
spread poisoned bait to kill birds depredating on her crops. That
action is directed at birds but does not ``take'' them in the common
law sense that ``take'' means to reduce wildlife to human physical
control, and it could also not be fairly characterized as hunting,
pursuing, or capturing them either. 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.
Likewise, a county road and highway department could use machinery to
destroy bird nests under a bridge. Any chicks within those nests would
likely be destroyed killing those chicks, but the maintenance workers
would not ``take'' them in the common law sense. Moreover, as noted
above, at least two appellate courts have specifically found that the
terms ``take'' and ``kill'' are ambiguous and apply to physical conduct
of hunters and poachers. Newton County; Seattle Audubon.
This conclusion is also supported by the Service's longstanding
implementing regulations, which define ``take'' to mean ``to pursue,
hunt, shoot, wound, kill, trap, capture, or collect'' or attempt to do
the same. 50 CFR 10.12. The component actions of ``take'' involve
direct actions to reduce animals to human control. As such, they
``reinforce[ ] the dictionary definition, and confirm[ ] that `take'
does not refer to accidental activity or the unintended results of
passive conduct.'' Brigham Oil & Gas, 840 F. Supp. 2d at 1209.
To support an argument that the terms ``take'' and ``kill'' should
be read expansively to include incidental conduct, a number of courts
including the NRDC court, as well as the prior M-Opinion, focused on
the MBTA's direction that a prohibited act can occur ``at any time, by
any means, in any manner'' to support the conclusion that the statute
prohibits any activity that results in the death of a bird, which would
necessarily include incidental take. 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. See generally CITGO,
801 F.3d at 490 (``The addition of adverbial phrases connoting `means'
and `manner,' however, does not serve to transform the nature of the
activities themselves. For instance, the manner and means of hunting
may differ from bow hunting to rifles, shotguns, and air rifles, but
hunting is still a deliberately conducted activity. Likewise, rendering
all-inclusive the manner and means of `taking' migratory birds does not
change what `take' means, it merely modifies the mode of take.'').
The NRDC court countered that referencing different manners of
taking birds does not give effect to the ``by any means and in any
manner'' language, but instead clarifies the term ``hunt'' because the
referenced activities are primarily different means of hunting.
However, other actions such as poisoning bait to control birds
depredating on crops would ``kill'' birds outside the context of
hunting. Many other methods of hunting, capturing, pursuing, taking, or
killing birds no doubt exist, and that is precisely the point. Congress
used the operative language to ensure that any method employed could
amount to a violation of the MBTA, so long as it involves one of the
enumerated prohibited actions and is directed at migratory birds.
The prior Solicitor's Opinion, M-37041, took a different tack from
the NRDC court and assumed that because the criminal misdemeanor
provision of the MBTA is a strict-liability crime, meaning that no mens
rea or criminal intent is required for a violation to have taken place,
any act that takes or kills a bird must be covered as long as the act
[[Page 1137]]
results in the death of a bird. In making that assumption, M-37041
improperly ignored the meaning and context of the actual acts
prohibited by the statute. Instead, the opinion presumed that the lack
of a mental state requirement for a misdemeanor violation of the MBTA
equated to reading the prohibited acts ``kill'' and ``take'' as broadly
applying to actions not specifically directed at migratory birds, so
long as the result is their death or injury. However, the relevant acts
prohibited by the MBTA are voluntary acts directed at killing or
reducing an animal to human control, such as when a hunter shoots a
protected bird causing its death. The key remains that the actor was
engaged in an activity the object of which was to kill or render a bird
subject to human control.
By contrast, liability fails to attach to actions that are not
directed toward rendering an animal subject to human control. Common
examples of such actions include driving a car, allowing a pet cat to
roam outdoors, or erecting a windowed building. 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. Because no ``take'' has occurred within the meaning of the
MBTA, the strict-liability provisions of the Act would not be
triggered.
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. However, the conclusion that the
taking and killing of migratory birds is a strict-liability crime does
not answer the separate question of what acts are criminalized under
the statute. The Fifth Circuit in CITGO stated, ``we disagree that
because misdemeanor MBTA violations are strict liability crimes, a
`take' includes acts (or omissions) that indirectly or accidentally
kill migratory birds.'' The court goes on to note that ``[a] person
whose car accidentally collided with the bird . . . has committed no
act `taking' the bird for which he could be held strictly liable. Nor
do the owners of electrical lines `take' migratory birds who run into
them. 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. Similarly, in Mahler v. U.S. Forest Serv., 927 F.
Supp. 1559 (S.D. Ind. 1996), the court described the interplay between
activities that are specifically directed at birds and the strict
liability standard of the MBTA:
[A comment in the legislative history] in favor of strict
liability does not show any intention on the part of Congress to
extend the scope of the MBTA beyond hunting, trapping, poaching, and
trading in birds and bird parts to reach any and all human activity
that might cause the death of a migratory bird. Those who engage in
such activity and who accidentally kill a protected migratory bird
or who violate the limits on their permits may be charged with
misdemeanors without proof of intent to kill a protected bird or
intent to violate the terms of a permit. 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. The 1986 amendment and corresponding
legislative history reveal only an intention to close a loophole
that might prevent felony prosecutions for commercial trafficking in
migratory birds and their parts.
Thus, there appears to be no explicit basis in the language or
the development of the MBTA for concluding that it was intended to
be applied to any and all human activity that causes even
unintentional deaths of migratory birds.
927 F. Supp. at 1581 (referencing S. Rep. No. 99-445, at 16 (1986),
reprinted in 1986 U.S.C.C.A.N. 6113, 6128). Thus, limiting the range of
actions prohibited by the MBTA to those that are directed at migratory
birds will focus prosecutions on activities like hunting and trapping
and exclude more attenuated conduct, such as lawful commercial
activity, that unintentionally and indirectly results in the death of
migratory birds.
The History of the MBTA
The history of the MBTA and the debate surrounding its adoption
illustrate that the Act was part of Congress's efforts to regulate the
hunting of migratory birds in direct response to the extreme over-
hunting, largely for commercial purposes, that had occurred over the
years. See United States v. Moon Lake Electric Ass'n, 45 F. Supp. 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. at 1574 (``The MBTA was designed to
forestall hunting of migratory birds and the sale of their parts'').
Testimony concerning the MBTA given by the Solicitor's Office for the
Department of Agriculture underscores this focus:
We people down here hunt [migratory birds]. The Canadians
reasonably want some assurances from the United States that if they
let those birds rear their young up there and come down here, we
will preserve a sufficient supply to permit them to go back there.
Protection of Migratory Birds: Hearing on H.R. 20080 Before the House
Comm. on Foreign Affairs, 64th Cong. 22-23 (1917) (statement of R.W.
Williams, Solicitor's Office, Department of Agriculture). Likewise, the
Chief of the Department of Agriculture's Bureau of Biological Survey
noted that he ``ha[s] always had the idea that [passenger pigeons] were
destroyed by overhunting, being killed for food and for sport.''
Protection of Migratory Birds: Hearing on H.R. 20080 Before the House
Comm. on Foreign Affairs, 64th Cong. 11 (1917) (statement of E. W.
Nelson, Chief Bureau of Biological Survey, Department of Agriculture).
Statements from individual Congressmen evince a similar focus on
hunting. Senator Smith, ``who introduced and championed the Act . . .
in the Senate,'' Leaders in Recent Successful Fight for the Migratory
Bird Treaty Act, Bulletin--The 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. Enough birds will keep every insect
off of every tree in America, and if you will quit shooting them,
they will do it.
55 Cong. Rec. 4816 (statement of Sen. Smith) (1917). Likewise, during
hearings of the House Foreign Affairs Committee, Congressman Miller, a
``vigorous fighter, who distinguished himself in the debate'' over the
MBTA, Leaders in Recent Successful Fight for the Migratory Bird Treaty
Act, Bulletin--The American Game Protective Association, July 1918, at
5, put the MBTA squarely in the context of hunting:
I want to assure you . . . that I am heartily in sympathy with
this legislation. I want it to go through, because I am up there
every fall, and I know what the trouble is. 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.
Protection of Migratory Birds: Hearing on H.R. 20080 Before the House
Comm. on Foreign Affairs, 64th Cong. 7 (1917) (statement of Rep.
Miller).
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 court even suggested
that these statements, which ``anticipated application of the
[[Page 1138]]
MBTA to children who act `through inadvertence' or `through accident,'
'' supported a broader reading of the legislative history. Moon Lake,
45 F. Supp. 2d at 1080-81. Upon closer examination, these statements
are instead consistent with a limited reading of the MBTA.
One such contemporary statement cited by the court is a letter from
Secretary of State Robert Lansing to the President attributing the
decrease in migratory bird populations to two general issues:
Habitat destruction, described generally as ``the
extension of agriculture, and particularly the draining on a large
scale of swamps and meadows;'' and
Hunting, described in terms of ``improved firearms and a
vast increase in the number of sportsmen.''
Representative Baker referenced these statements during the House
floor debate over the MBTA, implying that the MBTA was intended to
address both issues. Moon Lake, 45 F. Supp. 2d at 1080-81 (quoting H.
Rep. No. 65-243, at 2 (1918) (letter from Secretary of State Robert
Lansing to the President)). However, Congress addressed hunting and
habitat destruction in the context of the Migratory Bird Treaty through
two separate acts:
First, in 1918, Congress adopted the MBTA to address the
direct and intentional killing of migratory birds;
Second, in 1929, Congress adopted the Migratory Bird
Conservation Act to ``more effectively'' implement the Migratory Bird
Treaty by protecting certain migratory bird habitats.
The Migratory Bird Conservation Act provided the authority to
purchase or rent land for the conservation of migratory birds,
including for the establishment of inviolate ``sanctuaries'' wherein
migratory bird habitats would be protected from persons ``cut[ting],
burn[ing], or destroy[ing] any timber, grass, or other natural
growth.'' Migratory Bird Conservation Act, Sec. 10, 45 Stat. 1222, 1224
(1929) (codified as amended at 16 U.S.C. 715-715s). If the MBTA was
originally understood to protect migratory bird habitats from
incidental destruction, enactment of the Migratory Bird Conservation
Act 11 years later would have been largely superfluous. 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. 1981), aff'd on other grounds, 460 U.S. 300
(1983).
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 birds--whether
accomplished through hunting or some other means intended to kill birds
directly. For example, some Members ``anticipated application of the
MBTA to children who act `through inadvertence' or `through accident.'
''
What are you going to do in a case like this: A barefoot boy, as
barefoot boys sometimes do, largely through inadvertence and without
meaning anything wrong, happens to throw a stone at and strikes and
injures a robin's nest and breaks one of the eggs, whereupon he is
hauled before a court for violation of a solemn treaty entered into
between the United States of America and the Provinces of Canada.
Moon Lake, 45 F. Supp. 2d at 1081 (quoting 56 Cong. Rec. 7455 (1918)
(statement of Rep. Mondell)). ``[I]nadvertence'' in this statement
refers to the boy's mens rea. 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.
This is reinforced by the rest of the hypothetical, which posits that
the boy threw ``a stone at and strikes and injures a robin's nest.''
The underlying act is directed specifically at the robin's nest. 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. 2d at 1080-81. One Member of Congress
even offered a statement that explains why the statute is not redundant
in its use of the various terms to explain what activities are
regulated: ``[T]hey cannot hunt ducks in Indiana in the fall, because
they cannot kill them. I have never been able to see why you cannot
hunt, whether you kill or not. There is no embargo on hunting, at least
down in South Carolina. . . .' '' Id. at 1081 (quoting 56 Cong. Rec.
7446 (1918) (statement of Rep. Stevenson)). That Congress was animated
regarding potential restrictions on hunting and its impact on
individual hunters is evident from even the statements relied upon as
support for the conclusion that the statute reaches incidental take.
Finally, in 1918, Federal regulation of the hunting of wild birds
was a highly controversial and legally fraught subject. For example, on
the floor of the Senate, Senator Reed proclaimed:
I am opposed not only now in reference to this bill [the MBTA],
but I am opposed as a general proposition to conferring power of
that kind upon an agent of the Government. . . .
. . . Section 3 proposes to turn these powers over to the
Secretary of Agriculture. . . to make it a crime for a man to shoot
game on his own farm or to make it perfectly legal to shoot it on
his own farm. . . .
When a Secretary of Agriculture does a thing of that kind I have
no hesitancy in saying that he is doing a thing that is utterly
indefensible, and that the Secretary of Agriculture who does it
ought to be driven from office. . . .
55 Cong. Rec. 4813 (1917) (statement of Sen. Reed).
Federal regulation of hunting was also legally tenuous at that
time. Whether the Federal Government had any authority to regulate the
killing or taking of any wild animal was an open question in 1918. Just
over 20 years earlier, the Supreme Court in Geer had ruled that the
States exercised the power of ownership over wild game in trust,
implicitly precluding Federal regulation. See Geer v. Connecticut, 161
U.S. 519 (1896). When Congress did attempt to assert a degree of
Federal jurisdiction over wild game with the 1913 Weeks-McLean Law, it
was met with mixed results in the courts, leaving the question pending
before the Supreme Court at the time of the MBTA's enactment. See,
e.g., United States v. Shaver, 214 F. 154, 160 (E.D. Ark. 1914); United
States v. McCullagh, 221 F. 288 (D. Kan. 1915). It was not until
Missouri v. Holland in 1920 that the Court, relying on authority
derived from the Migratory Bird Treaty (Canada Convention) under the
Treaty Clause of the U.S. Constitution, definitively acknowledged the
Federal Government's ability to regulate the taking of wild birds. 252
U.S. 416, 432-33 (1920).
Given the legal uncertainty and political controversy surrounding
Federal regulation of intentional hunting in 1918, it is highly
unlikely that Congress intended to confer authority upon the executive
branch to prohibit all manner of activity that had an incidental impact
on migratory birds.
The provisions of the 1916 Canada Convention authorize only certain
circumscribed activities specifically directed at migratory birds.
Articles II through IV of the Convention create closed periods during
which hunting of migratory species covered by the Convention may be
authorized only for limited purposes, such as scientific use
[[Page 1139]]
or propagation. 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.
Additionally, Article V prohibits the taking of eggs or nests of
certain protected species, except for scientific and propagating
purposes under regulations issued by the parties, and Article VI
prohibits transport, import, and export of protected species except for
scientific or propagating purposes. See Canada Convention, 39 Stat.
1702.
Subsequent legislative history does not undermine a limited
interpretation of the MBTA, as enacted in 1918. 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. The meaning of written instruments ``does not alter. That which it
meant when adopted, it means now.'' South Carolina v. United States,
199 U.S. 437, 448 (1905).
The operative language in section 2 of the MBTA has changed little
since its adoption in 1918. The current iteration of the relevant
language--making it unlawful for persons ``at any time, by any means or
in any manner, to pursue, hunt, take, capture, kill, attempt to take,
capture, or kill, possess'' specific migratory birds--was adopted in
1935 as part of the Mexico Treaty Act and has remained unchanged since
then. Compare Mexico Treaty Act, 49 Stat. 1555, Sec. 3 with 16 U.S.C.
703(a). 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. See Convention
between the United States of America and Mexico for the Protection of
Migratory Birds and Game Mammals, 50 Stat. 1311 (Feb. 7, 1936) (Mexico
Convention). Subsequent Protocols amending both these Conventions also
did not explicitly address incidental take or otherwise broaden their
scope to prohibit anything other than purposeful take of migratory
birds. See Protocol between the Government of the United States and the
Government of Canada Amending the 1916 Convention between the United
Kingdom and the United States of America for the Protection of
Migratory Birds, Sen. Treaty Doc. 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. 105-26 (May 5, 1997) (authorizing indigenous groups to
harvest migratory birds and eggs throughout the year for subsistence
purposes).
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. See Lilley &
Firestone at 1181 (``In the early 1970s, United States v. Union Texas
Petroleum [No, 73-CR-127 (D. Colo. Jul. 11, 1973)] marked the first
case dealing with the issue of incidental take.''). This newfound
Federal authority was not accompanied by any corresponding legislative
change. The only contemporaneous changes to section 2 of the MBTA were
technical updates recognizing the adoption of a treaty with Japan. See
Act of June 1, 1974, Public Law 93-300, 88 Stat. 190. Implementing
legislation for the treaty with the Soviet Union also did not amend
section 2. See Fish and Wildlife Improvement Act of 1978, Public Law
95-616, sec. 3(h), 92 Stat. 3110. Similar to the earlier Conventions,
the provisions of the Japan and Russia Conventions authorized
purposeful take for specific activities such as hunting, scientific,
educational, and propagation purposes, and protection against injury to
persons and property. However, they also outlined mechanisms to protect
habitat and prevent damage from pollution and other environmental
degradation (domestically implemented by the Migratory Bird
Conservation Act and other applicable Federal laws). See Convention
between the Government of the United States and the Government of Japan
for the Protection of Migratory birds and Birds in Danger of
Extinction, and their Environment, 25 U.S.T. 3329 (Mar. 4, 1972) (Japan
Convention); Convention between the United States of America and the
Union of Soviet Socialist Republics Concerning the Conservation of
Migratory Birds and their Environment, 29 U.S.T. 4647 (Nov. 19, 1976)
(Russia Convention).
No changes were made to the section of the MBTA at issue here
following the later conventions except that the Act was modified to
include references to these later agreements. 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. See, e.g., Mahler, 927 F. Supp. at 1581 (``Many other
statutes enacted in the intervening years also counsel against reading
the MBTA to prohibit any and all migratory bird deaths resulting from
logging activities in national forests. 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. 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.''). Given the overwhelming evidence that the primary purpose of
section 2, as amended by the Mexico Treaty Act, was to control over-
hunting, the references to the later agreements do not bear the weight
of the conclusion reached by the prior Opinion (M-37041).
Thus, the only legislative enactment concerning incidental activity
under the MBTA is the 2003 appropriations bill that explicitly exempted
military-readiness activities from liability under the MBTA for
incidental takings. See Bob Stump National Defense Authorization Act
for Fiscal Year 2003, Public Law 107-314, Div. A, Title III, Sec. 315,
116 Stat. 2509 (2002), reprinted in 16 U.S.C.A. 703, Historical and
Statutory Notes. There is nothing in this legislation that authorizes
the government to pursue incidental takings charges in other contexts.
Rather, some have ``argue[d] that Congress expanded the definition of
`take' by negative implication'' since ``[t]he exemption did not extend
to the `operation of industrial facilities,' even though the government
had previously prosecuted activities that indirectly affect birds.''
CITGO, 801 F.3d at 490-91.
This argument is contrary to the Supreme Court's admonition that
``Congress . . . does not alter the fundamental details of a regulatory
scheme in vague terms or ancillary provisions--it does not, one might
say, hide elephants in mouseholes.'' Whitman v. Am. Trucking Ass'ns,
531 U.S. 457, 468 (2001). As the Fifth Circuit explained, ``[a] single
carve-out from the law cannot mean that the entire coverage of the MBTA
was implicitly and hugely expanded.'' CITGO, 801 F.3d at 491. Rather,
it appears Congress acted in a limited fashion to preempt a specific
and immediate impediment to military-readiness activities. ``Whether
Congress deliberately avoided more broadly changing the MBTA or simply
chose to
[[Page 1140]]
address a discrete problem, the most that can be said is that Congress
did no more than the plain text of the amendment means.'' Id. It did
not hide the elephant of incidental takings in the mouse hole of a
narrow appropriations provision.
Constitutional Issues
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). ``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). 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. Co.,
269 U.S. 385, 391 (1926)). 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.' '' Id. (quoting
United States v. Williams, 553 U.S. 285, 304 (2008)).
Assuming, arguendo, that the MBTA is ambiguous, the interpretation
that limits its application to conduct specifically directed at birds
is necessary to avoid potential constitutional concerns. As the Court
has advised, ``where an otherwise acceptable construction of a statute
would raise serious constitutional problems, the Court will construe
the statute to avoid such problems unless such construction is plainly
contrary to the intent of Congress.'' Edward J. DeBartolo Corp. v. Fla.
Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988);
cf. Natural Res. Defense Council v. U.S. Dep't of the Interior, 2020 WL
4605235 (S.D.N.Y. Aug. 11, 2020) (dismissing constitutional concerns,
but on the basis that the relevant language is unambiguous). Here, an
attempt to impose liability for acts that are not directed at migratory
birds raises just such constitutional concerns.
The ``scope of liability'' under an interpretation of the MBTA that
extends criminal liability to all persons who kill or take migratory
birds incidental to another activity is ``hard to overstate,'' CITGO,
801 F.3d at 493, and ``offers unlimited potential for criminal
prosecutions.'' Brigham Oil, 840 F. Supp. 2d at 1213. ``The list of
birds now protected as `migratory birds' under the MBTA is a long one,
including many of the most numerous and least endangered species one
can imagine.'' Mahler, 927 F. Supp. at 1576. Currently, over 1,000
species of birds--including ``all species native to the United States
or its territories''--are protected by the MBTA. 78 FR 65,844, 65,845
(Nov. 1, 2013); see also 50 CFR 10.13 (list of protected migratory
birds); Migratory Bird Permits; Programmatic Environmental Impact
Statement, 80 FR 30032, 30033 (May 26, 2015) (``Of the 1,027 currently
protected species, approximately 8% are either listed (in whole or in
part) as threatened or endangered under the Endangered Species Act
(ESA) (16 U.S.C. 1531 et seq.) and 25% are designated (in whole or in
part) as Birds of Conservation Concern (BCC).''). Service analysis
indicates that the top threats to birds are:
Cats, which kill an estimated 2.4 billion birds per year;
Collisions with building glass, which kill an estimated
599 million birds per year;
Collisions with vehicles, which kill an estimated 214.5
million birds per year;
Chemical poisoning (e.g., pesticides and other toxins),
which kill an estimated 72 million birds per year;
Collisions with electrical lines, which kill an estimated
25.5 million birds per year;
Collisions with communications towers, which kill an
estimated 6.6 million birds per year;
Electrocutions, which kill an estimated 5.6 million birds
per year;
Oil pits, which kill an estimated 750 thousand birds per
year; and
Collisions with wind turbines, which kill an estimated 234
thousand birds per year.
U.S. Fish and Wildlife Service, Threats to Birds: Migratory Birds
Mortality--Questions and Answers, available at https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php (last updated September 14,
2018).
Interpreting the MBTA to apply strict criminal liability to any
instance where a migratory bird is killed as a result of these threats
would certainly be a clear and understandable rule. See United States
v. Apollo Energies, Inc., 611 F.3d 679, 689 (10th Cir. 2010)
(concluding that under an incidental take interpretation, ``[t]he
actions criminalized by the MBTA may be legion, but they are not
vague''). However, it would also turn many Americans into potential
criminals. See Mahler, 927 F. Supp. 1577-78 (listing a litany of
scenarios where normal everyday actions could potentially and
incidentally lead to the death of a single bird or breaking of an egg
in a nest)). Such an interpretation could lead to absurd results, which
are to be avoided. 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.'').
These potentially absurd results are not ameliorated by limiting
the definition of ``incidental take'' to ``direct and foreseeable''
harm as some courts have suggested. See U.S. Fish and Wildlife Service
Manual, part 720, ch. 3, Incidental Take Prohibited Under the Migratory
Bird Treaty Act (Jan. 11, 2017). The court in Moon Lake identified an
``important and inherent limiting feature of the MBTA's misdemeanor
provision: To obtain a guilty verdict . . . , the government must prove
proximate causation.'' Moon Lake, 45 F. Supp. 2d at 1085. Quoting
Black's Law Dictionary, the court defines proximate cause as ``that
which, in a natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without which the accident
could not have happened, if the injury be one which might be reasonably
anticipated or foreseen as a natural consequence of the wrongful act.''
Id. (quoting Black's Law Dictionary 1225 (6th ed. 1990)) (emphasis in
original). 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.
Contrary to the suggestion of the courts in Moon Lake and Apollo
Energies that principles of proximate causation can be read into the
statute to define and limit the scope of incidental take, the death of
birds as a result of activities such as driving, flying, or maintaining
buildings with large windows is a ``direct,'' ``reasonably
anticipated,'' and ``probable'' consequence of those actions. As
discussed above, collisions with buildings and cars are the second and
[[Page 1141]]
third most common human-caused threat to birds, killing an estimated
599 million and 214.5 million birds per year, respectively. It is
eminently foreseeable and probable that cars and windows will kill
birds. Thus, limiting incidental take to direct and foreseeable results
does little to prevent absurd outcomes.
To avoid these absurd results, the government has historically
relied on prosecutorial discretion. See Ogden at 29 (``Historically,
the limiting mechanism on the prosecution of incidental taking under
the MBTA by non-federal persons has been the exercise of prosecutorial
discretion by the FWS.''); see generally FMC, 572 F.2d at 905
(situations ``such as deaths caused by automobiles, airplanes, plate
glass modern office buildings or picture windows in residential
dwellings . . . properly can be left to the sound discretion of
prosecutors and the courts''). Yet, the Supreme Court has declared
``[i]t will not do to say that a prosecutor's sense of fairness and the
Constitution would prevent a successful . . . prosecution for some of
the activities seemingly embraced within the sweeping statutory
definitions.'' Baggett v. Bullitt, 377 U.S. 360, 373 (1964); see also
Mahler, 927 F. Supp. 1582 (``Such trust in prosecutorial discretion is
not really an answer to the issue of statutory construction'' in
interpreting the MBTA.). 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. of
Regents, 385 U.S. 589, 599 (1967).
Recognizing the challenge posed by relying upon prosecutorial
discretion, the FMC court sought to avoid absurd results by limiting
its holding to ``extrahazardous activities.'' FMC, 572 F.2d at 907. The
term ``extrahazardous activities'' is not found anywhere in the statute
and is not defined by either the court or the Service. See Mahler, 927
F. Supp. at 1583 n.9 (noting that the FMC court's ``limiting principle
. . . of strict liability for hazardous commercial activity . . . ha[s]
no apparent basis in the statute itself or in the prior history of the
MBTA's application since its enactment''); cf. United States v.
Rollins, 706 F. Supp. 742, 744-45 (D. Idaho 1989) (``The statute itself
does not state that poisoning of migratory birds by pesticide
constitutes a criminal violation. Such specificity would not have been
difficult to draft into the statute''). Thus, it is unclear what
activities are ``extrahazardous.'' In FMC, the concept was applied to
the manufacture of ``toxic chemicals,'' i.e., pesticides. But the court
was silent as to how far this rule extends, even in the relatively
narrow context of pesticides.
This type of uncertainty is problematic under the Supreme Court's
due process jurisprudence. See Rollins, 706 F. Supp. 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. While statutes do not have to be drafted with `mathematical
certainty,' they must be drafted with a `reasonable degree of
certainty.' The MBTA fails this test. . . . Under the facts of this
case, the MBTA does not give `fair notice as to what constitutes
illegal conduct' so that [the farmer] could `conform his conduct to the
requirements of the law.' '' (internal citations omitted)).
While the MBTA does contemplate the issuance of permits authorizing
the taking of wildlife, it requires such permits to be issued by
``regulation.'' See 16 U.S.C. 703(a) (``Unless and except as permitted
by regulations made as hereinafter provided . . . .'' (emphasis
added)). No 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. There are
voluntary Service guidelines issued for different industries that
recommend best practices to avoid incidental take of protected birds;
however, these guidelines provide only limited protection to potential
violators and do not constitute a regulatory authorization or result in
the issuance of permits.
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.
Accordingly, the guidelines do not provide enforceable legal
protections for people and businesses who abide by their terms. To wit,
the guidelines themselves state, ``it is not possible to absolve
individuals or companies'' from liability under the MBTA. Rather, the
guidelines are explicit that the Service may only consider full
compliance in exercising its discretion whether to refer an individual
or company to the Department of Justice for prosecution. See, e.g.,
U.S. Fish and Wildlife Service, Land-Based Wind Energy Guidelines 6
(Mar. 23, 2012).
Under this approach, it is literally impossible for individuals and
companies to know exactly what is required of them under the law when
otherwise-lawful activities necessarily result in accidental bird
deaths. Even if they comply with everything requested of them by the
Service, they may still be prosecuted, and still found guilty of
criminal conduct. See generally United States v. FMC Corp., 572 F.2d
902, 904 (2d Cir. 1978) (the court instructed the jury not to consider
the company's remediation efforts as a defense: ``Therefore, under the
law, good will and good intention and measures taken to prevent the
killing of the birds are not a defense.''). 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.' '' Smith v. Goguen, 415 U.S. 566, 572-
73 (1974).
Reading the MBTA to capture incidental takings could potentially
transform average Americans into criminals. 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. Even assuming that the text could be subject to multiple
interpretations, courts and agencies are to avoid interpreting
ambiguous laws in ways that raise constitutional doubts if alternative
interpretations are available. Interpreting the MBTA to criminalize
incidental takings raises potential due process concerns. 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. Therefore, the Service concludes that the scope of the MBTA
does not include incidental take.
Policy Analysis of Incidental Take Under the MBTA
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. In
addition, even if such a conclusion is not legally compelled, the
Service proposes to adopt it as a matter of policy.
The Service's approach to incidental take prior to 2017 was
implemented without public input and has resulted in regulatory
uncertainty and
[[Page 1142]]
inconsistency. Prosecutions for incidental take occurred in the 1970s
without any accompanying change in either the underlying statute or
Service regulations. Accordingly, an interpretation with broad
implications for the American public was implicitly adopted without
public debate. 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.
Based upon the Service's analysis of manmade threats to migratory
birds and the Service's own enforcement history, common activities such
as owning and operating a power line, wind farm, or drilling operation
pose an inherent risk of incidental take. 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.
This approach effectively leaves otherwise lawful and often
necessary businesses to take their chances and hope they avoid
prosecution, not because their conduct is or even can be in strict
compliance with the law, but because the government has chosen to forgo
prosecution. Otherwise-lawful economic activity should not be
functionally dependent upon the ad hoc exercise of enforcement
discretion.
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. Courts have adopted different views
on whether section 2 of the MBTA prohibits incidental take, and, if so,
to what extent. 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. See
United States v. FMC Corporation, 572 F.2d 902 (2d Cir. 1978); United
States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010); United
States v. Corbin Farm Serv., 444 F. Supp. 510 (E.D. Cal. 1978); Ctr.
for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002),
vacated on other grounds sub nom. Ctr. for Biological Diversity v.
England, 2003 App. LEXIS 1110 (D.C. Cir. 2003). By contrast, Courts of
Appeals in the Fifth, Eighth, and Ninth Circuits, as well as district
courts in the Third and Seventh Circuits, have indicated that it does
not. See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir.
2015); Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110
(8th Cir. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir.
1991); Mahler v. U.S. Forest Serv., 927 F. Supp. 1559 (S.D. Ind. 1996);
Curry v. U.S. Forest Serv., 988 F. Supp. 541, 549 (W.D. Pa. 1997).
As a result of these cases, the Federal Government is clearly
prohibited from enforcing an incidental take prohibition in the Fifth
Circuit. 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. See generally Apollo
Energies, 611 F.3d at 686 (distinguishing the Eighth Circuit decision
in Newton County on the grounds that it involved logging that modified
a bird's habitat in some way). However, that argument was rejected by a
subsequent district court. See United States v. Brigham Oil & Gas,
L.P., 840 F. Supp. 2d 1202 (D.N.D. 2012). Likewise, the Federal
Government has sought to distinguish holdings in the habitat-
destruction context in the Ninth Circuit. See United States v. Moon
Lake Electrical Ass'n, 45 F. Supp. 2d 1070, 1075-76 (D. Colo. 1999)
(suggesting that the Ninth Circuit's ruling in Seattle Audubon may be
limited to habitat modification or destruction). In the Second and
Tenth Circuits, the Federal Government can apply the MBTA to incidental
take, albeit with differing judicial limitations.
These cases demonstrate the potential for a convoluted patchwork of
legal standards; all purporting to apply the same underlying law. The
MBTA is a national law. Many of the companies and projects that face
potential liability under the MBTA operate across boundary lines for
judicial circuits. 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. The Service concludes that it is in its own interest, as well
as that of the public, to have and apply a national standard that sets
a clear, articulable rule for when an operator crosses the line into
criminality. 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.
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.
Public Comments
On February 3, 2020, the Service published in the Federal Register
(85 FR 5915) a proposed rule to define the scope of the MBTA as it
applies to conduct resulting in the injury or death of migratory birds
protected by the Act. We solicited public comments on the proposed rule
for 45 days, ending on March 19, 2020. We received 8,398 comments. Many
comments included additional attachments (e.g., scanned letters,
photographs, and supporting documents). These comments represented the
views of multiple State and local government agencies, private
industries, non-governmental organizations (NGOs), and private
citizens. In addition to the individual comments received, 10
organizations submitted attachments representing individuals' comments,
form letters, and signatories to petition-like letters representing
almost 180,000 signers. The following text presents the substantive
comments we received and responses to them.
Comment: Multiple commenters noted that Congress has amended the
MBTA in multiple instances (i.e., narrowing scope of strict liability,
adding knowledge requirement to felony violation, narrowly exempting
certain activities from incidental take, etc.). The commenters noted
that Congress could have clarified any objection to the enforcement of
incidental take but did not. The commenters suggested that these later
congressional interpretations should be given great weight and that
failure to include incidental take within the scope of the statute
would virtually nullify these amendments. Congress specifically
demonstrated its familiarity with the development of take liability in
1998 when it tackled the ``unfairness'' of strict liability in baiting
cases. Rather than strict liability, the MBTA would apply a negligence
standard to hunters who used fields with loose grain. 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.''
Response: The operative language originally enacted in section 2 of
the MBTA has not substantively changed since 1936. The 1936 amendment
modified the language to clarify its meaning and application, but there
is no indication those changes were intended
[[Page 1143]]
to broaden the scope of the statute beyond actions directed at
migratory birds. The subsequent amendments have instead fine-tuned the
mens rea required for violations directed at migratory birds, including
commercial use, hunting, and baiting. Interpreting the statute to reach
only actions directed at migratory birds would not nullify these
amendments. 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 1988 amendment was, as noted,
simply a reaction to a court decision that added a negligence standard
for baiting violations. As noted in the M-Opinion, nothing in the
referenced amendments disturbs Congress's original intent that section
2 apply only to actions directed at migratory birds. 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.
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. Congress enacted the relevant provision
in the wake of a case in which the court enjoined specific U.S. Navy
live-fire training exercises that incidentally killed migratory birds.
The commenters reasoned that Congress could have directed the Service
to issue MBTA regulations that achieved the same result as this
rulemaking action by limiting the MBTA to direct actions against
migratory birds. Alternatively, Congress could have amended the MBTA
itself to clarify that it did not apply to incidental takes and kills.
However, Congress did not do either of those things; instead, it
temporarily exempted incidental taking caused by military-readiness
activities from the MBTA prohibition and directed the Service to issue
MBTA regulations to create a permanent authorization for military-
readiness activities. Thus, Congress spoke clearly to the matter of
whether the MBTA scope includes incidental takes and kills.
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. Congress was
simply acting to preempt application of a judicial decision that
specifically and immediately restricted military-readiness activities.
Imputing Congressional intent beyond the plain text of a narrow
appropriation provision is not warranted. 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. Congress may
simply have chosen to address a discrete problem without any intent to
interpret more broadly the MBTA outside of that particular context. 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.
Comment: The proposed rule contained no information on the
consequences of the action on migratory birds and the environment as a
whole (through decreased ecosystem services). The commenter went on to
note that there is no evidence presented as to the economic burden for
implementing voluntary best management practices.
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.
Within the EIS, the Service analyzed impacts of the no action
alternative and two additional alternatives on (1) The overall effect
of each alternative on migratory bird populations, (2) the effect of
any decrease in migratory bird populations on ecosystem services, (3)
the potential effects of climate change in combination of each
alternative, and (4) the impacts to industry and small business that
may profit from migratory birds. The Service also asked for and
provided discussion on what extent industry would continue to implement
best practices when there is no incentive to do so. This EIS was open
for public comments, and comments focused on these analyses are
addressed within the final EIS. 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.
Comment: Multiple commenters noted that the process being used for
this rulemaking is unconventional. The commenters noted that the
proposed rule was published with a notice of intent to prepare an EIS
but without any concurrent environmental analysis of alternatives. This
approach compromised the ability of commenters reviewing the proposed
rule to understand fully the effects of the rule. 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. In addition,
commenters noted that the 45-day comment period was inadequate for a
rule that proposes to substantially change decades of conservation
policy and hinder bird conservation in the United States, given the
current National State of Emergency in response to the novel Covid-19
coronavirus. Many of these commenters requested an extended comment
period.
Response: The procedures followed in this rulemaking process were
appropriate and lawful. A draft EIS, issued subsequent to the proposed
rule, analyzed various alternatives, some of which were discussed in
the public webinars conducted as part of the NEPA scoping process. One
alternative in the draft EIS covers the expected effects of reverting
to the Department's prior interpretation of the statute. 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). The NEPA process provides a broad
analysis of the environmental and socioeconomic impacts of reasonable
alternatives to the agency's proposal. 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. Moreover, the M-
Opinion, which provided the original basis for this rulemaking, has
been publicly available for more than 2 years.
Comment: Members of the U.S. Senate commented that the Department
closed the comment period on the proposed rule in mid-March during the
height of a pandemic, ignoring requests from some in Congress to extend
the comment deadline, and without even responding to Congress until
after the deadline ended. Since then, some of the Nation's governors,
State legislatures, and mayors jointly requested a suspension of public
comment periods
[[Page 1144]]
during this national emergency. 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. The Department appears to be rushing
through this entire process to meet an arbitrary timeline. At the very
least, the Department should not be providing the minimum comment
period. Rather, it should extend that comment period by 45 days or
more.
Response: The procedures followed in this rulemaking process were
appropriate and lawful. The Department provided 45-day comment periods
on both the NEPA scoping process and the draft EIS and a separate 45-
day comment period on the proposed rule. These three separate 45-day
periods provided sufficient time for the public to address this
rulemaking. Moreover, the M-Opinion, which provided the original basis
for this rulemaking, has been publicly available for more than 2 years.
Comment: Multiple commenters noted that NEPA requires that
decisions be analyzed in a public process before an agency
irretrievably commits its resources. Specifically, an agency ``shall
commence preparation of an [EIS] as close as possible to the time the
agency is developing or is presented with a proposal.'' The DOI should
suspend M-Opinion 37050 while the Service considers the environmental
impacts as required by NEPA.
Response: The Service began the NEPA process at the appropriate
time--when it first considered rulemaking regarding the interpretation
of the MBTA originally set forth in M-37050. The Service drafted the
proposed rule with sufficient flexibility to incorporate the
alternatives analyzed in the draft EIS. The NEPA process informed our
decision-making process culminating in this final rule.
Comment: The Flyway Councils noted that the proposed rule was
brought forth without the proper procedures as outlined by NEPA and the
APA. The Flyways noted that there was no advance notice of rulemaking
to assess the implications of the proposed rule. In addition, the
Flyways noted that no alternatives were put forth and there was no
opportunity to propose other alternatives.
Response: The Service announced the scoping process in a notice of
intent (NOI) to complete an EIS in the Federal Register on February 3,
2020 (85 FR 5913). An advanced notice of proposed rulemaking is not
required. The Service has provided three opportunities to submit
comments through the scoping notice, the proposed rulemaking, and the
publication of the draft EIS.
Comment: One State expressed concern with the Service's attempt to
alter its previous interpretation of the MBTA (M-37041) in the absence
of review pursuant to NEPA. Therefore, the State requested that the
short[hyphen] and long-term impacts of the proposed rule change be
fully and accurately evaluated in the EIS, and that there be at least a
60-day comment period after the draft EIS is published in order to
facilitate a thorough public review. In the Service's evaluation of
those impacts, it is critical to compare the proposed rule's impacts
with the prior interpretation of the MBTA represented in M-37041, which
concluded that the MBTA prohibits incidental take.
Response: The Service has fulfilled the commenter's request through
the publication of a draft EIS, which analyzed a no action alternative
and two action alternatives. One of the alternatives reverts to the
prior interpretation of the MBTA described in Solicitor's Opinion M-
37041. In the draft EIS, we compared the impacts of codifying M-37050
with returning to the prior Opinion's interpretation. We established 45
days as an appropriate period for public comment on the draft EIS. 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.
Comment: Multiple commenters were concerned about the unorthodox
approach of simultaneously publishing a draft rule and a NEPA scoping
announcement and seeking comments on both at the same time. 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. Under the normal
NEPA EIS process, Federal agencies would conduct scoping of an issue,
develop multiple action alternatives, put those alternatives out for
public notice and comment, and ultimately select an alternative to
advance. In this case, the Service appears at the scoping phase to have
already selected the outcome it intended to reach.
Response: The Service began the NEPA process at the appropriate
time--when it first considered rulemaking regarding the interpretation
of the MBTA originally set forth in M-37050. The Service drafted the
proposed rule with sufficient flexibility to incorporate the
alternatives analyzed in the draft EIS. The NEPA process informed our
decision-making process culminating in this final rule.
Comment: The Service cannot conduct a credible NEPA process based
on the timeline and chronology it has presented at this point.
Completing the entire NEPA process and reaching a final record of
decision (ROD) and final rule by fall of 2020 is an extraordinarily
short timeline of less than 10 months to proceed from initial scoping
to final rule. It is difficult to imagine any scenario under which the
Federal agencies could review and give serious consideration to the
comments it will receive on this proposed rule, let alone incorporate
them into a final EIS, ROD, and final rule.
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. The Service provided alternatives to the proposed
action and has not predetermined any outcome of the NEPA process. 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. We will explain
that selection in a record of decision at the appropriate time.
Comment: Multiple commenters felt the manner in which this proposed
rulemaking was announced on January 30, 2020, by the Service's Office
of Public Affairs was improper and a violation of the APA (Pub. L. 79-
404, 60 Stat. 237). They asserted that the inclusion of 28 statements
of support for this proposed rule within the rulemaking announcement
establishes a record of pre-decisional collusion with certain interest
groups by a regulatory agency that has tainted the entire rulemaking
process and clouded the ultimate decision the Service will be called
upon to make, once the comment period closes and all public testimony
is fairly and impartially evaluated.
Response: The Service did not collude with any stakeholders,
industry or otherwise, on the contents of the proposed rule before it
was published in the Federal Register. 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.
Interagency review limited to Federal agencies occurred prior to
issuance of the proposed rule under procedures required by Executive
Order
[[Page 1145]]
12866 and implemented by the Office of Management and Budget. The
announcement of the proposed rule was primarily a notification to the
public and the media summarizing the contents of the proposed rule and
its availability for public comment, with the viewpoints of several
stakeholders included. It is not part of the official APA rulemaking
process or docket and plays no part in the agency's ultimate decision.
The announcement was not considered in developing this final rule.
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.
Response: The referenced section was contained in a press release
issued with the publication of the proposed rule. It is not part of the
rulemaking record, and we did not consider the statements included in
the press release as official public comments. The Service received
many responses during the public comment period for the proposed rule
from migratory bird experts and interested non-governmental
organizations. We analyzed those comments, responded to any substantive
issues presented, and amended the proposed rule where appropriate based
on those comments.
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. These commenters recommended that
the Service postpone any rulemaking regarding MBTA prohibitions of
incidental take until the legal challenges to the M-Opinion currently
pending in the United States District Court for the Southern District
of New York are resolved. Given the uncertain future of M-Opinion 37050
and accompanying legal vulnerability of the proposed rule, it would be
prudent for the Service to put the proposed rulemaking on hold until
the courts have determined whether the M-Opinion on which it is based
withstands legal scrutiny.
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. In
fact, agencies may codify interpretations struck down by courts and
have subsequent courts defer to and uphold the later rulemaking. See
Natl. Cable & Telecommunications Ass'n v. Brand X internet Svcs., 545
U.S. 967 (2005). We note that on August 11, 2020, a district court
vacated M-37050 and held that the plain language of the MBTA prohibits
incidental take. See Natural Res. Defense Council v. U.S. Dep't of the
Interior, 2020 WL 4605235 (S.D.N.Y.). We respectfully disagree with
that court's opinion and have finalized this rulemaking consistent with
the Supreme Court's holding in Brand X.
Comment: The proposed rule incorrectly concludes that the terms
``kill'' and ``take'' are ambiguous. 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. The Service proposes that ``kill'' and ``take'' exclude
unintentional actions as they are listed among directed actions such as
``hunt'' or ``pursue.'' Yet this construction renders the list
meaningless, working contrary to established norms of interpretation--
if ``kill'' were limited to ``hunt'' and ``pursue,'' then there would
be no need to include ``hunt'' and ``pursue'' on the list. 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. Its provisions protect non-game and
insectivorous birds that are not--and have never been--intentionally
pursued for game, poaching, or trafficking.
Response: We disagree with the commenter's interpretation of the
MBTA. 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: The plain language of this statute pertains to conduct
directed at species, and nowhere in the operative language does the law
suggest an intent on the part of Congress to impose criminal liability
for the incidental effects of otherwise lawful activities. The scope of
prohibited conduct covers actions, which require intent--``pursue,''
``hunt,'' and ``capture'' are all actions directed at wildlife and
cannot be performed by accident. The terms ``take'' and ``kill'' are
informed by the context of the rest of the statute in which they must
be read, and by the legislative and historical record of the MBTA and
other environmental laws.
Response: We agree with the comment that the language of section 2
of the MBTA pertains to conduct directed at migratory birds and not
conduct that incidentally results in the death of migratory birds.
Comment: The original legislative intent of the MBTA was the
protection and sustainability of migratory bird populations. The word
``protection'' occurs in its first sentence. There has been no express
delegation of law-making duties or authority to amend the MBTA. The
MBTA's legislative intent is to prevent needless losses, establish
closed seasons for hunting, prohibit the taking of nests or eggs of
migratory game or insectivorous nongame birds except for scientific or
propagating purposes, further establish longer closures for certain
species, and provide for the issuance of permits to address the killing
of specified birds. Despite the phrase ``incidental take'' not
appearing in either the MBTA or implementing regulations, its
protective statutory intent remains clear, as shown by its common and
long-time use in Congressional hearings and correspondence, and in
inter- and intra-agency communications. Since its intent has not been
amended by an act of Congress, the agency charged by Congress with its
administration does not have the authority to restrict its meaning and
intent.
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.
It does not require any delegation from Congress other than the
delegations to the Secretary already included in the terms of the
statute. The Service disagrees that this rulemaking restricts the
meaning and intent of the MBTA. 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. Thus, we disagree
with the commenter's assertion that this rule restricts or alters the
meaning or intent of the MBTA.
Comment: Although the MBTA was written in large part to address the
then-largest threat to migratory birds--hunters and poachers--the
proposed rule offers no evidence to show its passage was intended to
regulate only the activities that threatened birds in 1918. 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. To impose a limit on the activities it
could regulate under the MBTA would be to ossify this
[[Page 1146]]
broadly written protection into only applying to activities that
existed during the decade immediately following its passage. An
intention found nowhere in its text, legislative history, or subsequent
interpretation and implementation.
Response: Congress's primary concern when enacting the MBTA in 1918
was hunting, poaching, and commercial overexploitation of migratory
birds. It is clear from the legislative history leading up to the
statute's passage that Congress drafted language to address those
threats. 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. Instead, the balance of the legislative history favors
the opposite interpretation as explained in the preamble.
Comment: A letter from some members of the U.S. Senate stated that
the stakes of the proposed rule are considerable, and like the legal
opinion, it will have a significant detrimental impact on migratory
birds. This letter explained that birds provide tremendous value to our
communities. 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. Congress also recognized that birds benefit
American agriculture and forestry through the consumption of vast
numbers of insect pests. This fact remains true today and takes on new
importance with the spread of invasive species and outbreaks. The
proposed rule contravenes the text and purpose of the MBTA and fails to
align with the purpose of our migratory bird treaties and our
international obligations. The rule also presents a false choice
between regulatory certainty and implementing the MBTA.
Response: This rulemaking does not present a false choice between
regulatory certainty and implementing the MBTA. M-37050 concluded that
the MBTA does not prohibit incidental take. This rulemaking codifies
that interpretation; thus, the Service has ultimately determined that
developing a framework to authorize incidental take is not an action
that is consistent with the statute. The Service notes that a Federal
regulation applies across all agencies of the Federal Government and
provides a more permanent standard that the public and regulated
entities can rely on for the foreseeable future, in contrast to
continued implementation of the MBTA under a legal opinion. This
difference is underscored by the recent Federal district court decision
vacating the M-Opinion. The final EIS and Regulatory Impact Analysis
analyze the ecosystem services, such as insect consumption, provided by
migratory birds.
Comment: Multiple commenters presented arguments that the Service
has misquoted the provisions of the MBTA and that the proposal does not
address the statutory authority in section 3 to authorize take of
migratory birds that would otherwise violate the statute, which the
commenters contend is the source of the Secretary's authority to
implement the statute.
Response: This proposal does not authorize the taking of migratory
birds; it defines the scope for when authorizations under section 2 are
necessary and proper. Thus, it does not rely on the statutory language
presented by the commenter. 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. The authority in section 3 is also contingent on an
understanding of what actions violate the statute in the first place.
Comment: Several commenters suggested that the proposed rule paints
a broad brush over incidental takes, treating all equally and absolving
even grossly negligent behavior that can result in the large-scale
death of birds. The commenters suggested that the Service modify the
proposed rule to include a provision where incidental take resulting
from reckless negligent behavior is considered a violation (i.e., gross
negligence). This approach would include creating a definition of
``extra-hazardous activities'' and enforcing incidental take when it
results from gross negligence. 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. The language of the act needs to be changed to protect
those who injure birds on a purely accidental basis. However, there
needs to be language that allows for the prosecution of individuals who
are grossly negligent.
Response: During scoping for the associated EIS, we considered an
alternative where the Service would promulgate a regulation defining
what constitutes incidental take of migratory birds and develop an
enforcement policy requiring gross negligence to establish a
misdemeanor violation of the MBTA. The Service eliminated this
alternative from further review because the vast majority of Federal
courts have concluded the MBTA's misdemeanor provision is a strict
liability crime--in other words, it has no minimum mens rea
requirement. 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. Thus, codifying the Service's interpretation of the scope
of the MBTA under a gross negligence standard would only serve to
reduce legal certainty.
Comment: One commenter recommended that the Service prohibit
incidental take that results from an extra-hazardous activity. The
commenter felt that providing such a take threshold would allow the
Service to address incidental take that occurs because of an entity's
negligence.
Response: The proposed rule did not provide a threshold for
prohibiting incidental take because it proposed to codify the
interpretation set forth in M-37050 that the Act does not prohibit
incidental take in the first place. The commenter is essentially
proposing adopting an extra-hazardous activity requirement as a proxy
for negligence or gross negligence. We decline to adopt that proposal
for the same reasons we rejected application of a gross-negligence
standard.
Comment: One commenter recommended following a Safe Harbor approach
for industry that participates in avoidance, minimization, and
mitigation measures.
Response: This approach would be very similar to establishing a
policy to decline enforcement except in cases of gross negligence. We
decline to adopt this proposal for the same reasons we rejected
application of a gross-negligence standard.
Comment: Multiple commenters felt that the MBTA needed to be
amended by Congress to make the changes being proposed in this
regulation.
Response: The commenters are correct that only Congress can amend
the language of the MBTA. The Service is charged with implementing the
statute as written. The Department's Principal Deputy Solicitor,
exercising the authority of the Solicitor pursuant to Secretary's Order
3345, determined in M-37050 that the statute as written does not
prohibit incidental take. We are codifying that interpretation in this
rulemaking. Thus, we are simply interpreting the existing language and
not amending the statute or altering statutory language in this
regulation.
Comment: One commenter suggested amending the proposed regulatory
[[Page 1147]]
language by adding: ``provided that the person, association,
partnership, or corporation takes reasonably practicable precautionary
measures to prevent the taking or killing of migratory birds. Owing to
the diversity in operations of the various industries affected by this
rule, USFW shall develop industry specific guidelines for developing
precautionary measures to prevent the taking or killing of migratory
birds.''
Response: The language proposed by the commenter is not consistent
with our interpretation of the MBTA. The proposal would essentially be
adding language to the MBTA given our interpretation that it does not
prohibit incidental take. We have no authority to amend the statutory
language or add provisions that simply are not there. Thus, we
respectfully decline to adopt the commenter's proposed language.
Comment: Multiple commenters opposed the proposed action because
recent studies have demonstrated that North American bird populations
are facing significant population declines. Birds have economic and
ecosystem services value, and, if birds continue to decline, the
economy and ecosystems will be compromised. The commenters called for
more protections and see the proposed rule as weakening actions for the
conservation of migratory birds.
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. However, the proposed action is based on a legal
interpretation of the MBTA. It is also noteworthy that those losses
occurred despite the Department's prior interpretation of the MBTA as
prohibiting incidental take. 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. For example, the Service will
continue to work with any partner that is interested in reducing their
impacts on birds by developing voluntary practices to reduce mortality
and providing technical assistance for effectively implementing those
practices.
Comment: Multiple commenters opposed the proposed rule because it
removes the MBTA as the only mechanism that the Service can apply to
require actions that avoid or minimize incidental take that is
otherwise preventable.
Response: The Service does not agree that the MBTA is the only
mechanism to achieve bird conservation. The Service is committed to
working with those that voluntarily seek to reduce their project-
related impacts to migratory birds. In addition to the MBTA, other
Federal and State laws protect birds and require specific actions to
reduce project-related impacts.
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.
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. We will not hold entities accountable for take that does not
violate the MBTA. 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: 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.
Response: The enforcement of the MBTA is just one part of how the
Service works with others to conserve migratory birds. We have found
that building partnerships domestically and internationally to build
strategies for implementing measures that protect, manage, and conserve
migratory birds is a more effective conservation tool than enforcing
incidental take under the MBTA on a piecemeal basis with our limited
law enforcement resources. A few examples of our partnership work
include: (1) Managing and implementing grant programs under the
Neotropical Migratory Bird Conservation Act and North American Wetlands
Conservation Act, (2) using Joint Ventures to build regional
partnerships for habitat and species conservation, and (3) working with
other Federal, State, and industry partners to develop voluntary
solutions for reducing impacts to migratory birds and their habitat.
Comment: Multiple commenters supported the proposed action because
a clarification of the scope of the MBTA was needed to avoid
unnecessary regulation of industry projects.
Response: The Service appreciates the perspective of the entities
that support this rulemaking.
Comment: Multiple commenters supported the proposal because, in
their view, criminalizing incidental take does not advance conservation
and other mechanisms could be used to protect birds.
Response: The Service agrees with this comment. We will continue to
work with any entity that seeks to reduce their impacts to migratory
birds to achieve conservation outcomes.
Comment: One commenter asked who would be financially responsible
to mitigate and/or reverse the effects of an environmental disaster on
a large or small scale, to prevent any further incidental takes of
birds or their eggs once the disaster is under way. The commenter noted
that under the prior interpretation of the MBTA, the party causing the
disaster was clearly held liable and financially responsible. Under the
new interpretation, this is no longer the case. The commenter asked
whether the Service will be establishing a fund to step in for cleanup
and incidental take mitigation when environmental mishaps occur. If
not, where does the Service anticipate such needed funds will
originate?
Response: The proposed rule does not directly affect Natural
Resource Damage assessments for accidents that have environmental
impacts because statutory authorities that provide the basis for that
program do not rely on the MBTA. 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 Department's assessment of
natural resource injuries under the Natural Resource Damage Assessment
Program includes any injury to migratory birds, which in many cases
could otherwise be classified as incidental take.
Comment: One commenter asked whether any best management practices
would be required under any circumstances and how the proposed rule
affected both Executive Order 13186: Responsibilities of Federal
Agencies to Protect Migratory Birds and the implementation of the Land-
based Wind Energy Guidelines.
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
[[Page 1148]]
incidental take under certain circumstances, as there has never been a
specific permit provision for authorizing incidental take that would
require their implementation. The Service has worked with project
proponents to encourage the voluntary use of BMPs and used enforcement
discretion to determine when an enforcement action was appropriate.
Under the proposed rule, the Service will continue to work with and
encourage the voluntary implementation of BMPs when the entity seeks to
reduce their project-related impacts. E.O. 13186 remains in place and
is a valuable tool for Federal agencies to work cooperatively to
implement bird conservation strategies within their agency missions.
The Land-based Wind Energy Guidelines are a voluntary approach to
siting wind-energy facilities. This rule may reduce the incentive for
affected parties to implement these guidelines.
Comment: Several commenters stated that some estimates of bird
mortality used in the rule are more than a decade old and out of date.
In one of the comments, they referenced that the proposed rule cites
500,000 to 1,000,000 deaths per year at oil pits as old and high,
suggesting that new technological innovation and State regulations have
caused a decrease in oil pit mortality.
Response: The summary of mortality from anthropogenic sources was
based on the best scientific information currently available. Often,
monitoring of industrial projects is not conducted, and when it is, the
Service rarely gets reports of the findings. The Service recognizes
that these estimates may represent both over- and under-estimates
depending on the mortality source. 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. 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. The Service did
not receive any industry-related information for further consideration.
If an industry sector has new or different information, we encourage
them to submit those data to the Service for review and consideration.
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 data--including 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.
Response: The Service acknowledges that birds are currently in
decline. Numerous technical reports including the 2019 Science paper
have highlighted the declines in many habitat groups due to numerous
anthropogenic sources (see page 26). However, this rulemaking is not
expected to affect significantly those continuing declines. The Service
will continue to work with partners to address migratory bird declines
outside of a regulatory context.
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. There are also State and local laws that would prevent the
unnecessary killing of birds.
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. These mechanisms could reduce impacts to birds in some
circumstances. We note, however, that NEPA does not provide substantive
environmental protections by itself.
Comment: Multiple commenters recommended the Service clarify how
the Service will continue to collect project-level data on industrial
impacts to birds. 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.
Response: Project-level information is still recorded when a
project proponent engages the Service for technical assistance. 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. We note that even under the prior
interpretation of the MBTA, there was no general mechanism to provide
for the collection of project-level data on impacts to avian species.
When an intentional take permit is issued, conditions of that permit
request any information on incidental mortalities that are discovered.
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.
Comment: One commenter focused on impacts of wind energy and
suggested that the final rule should provide language that terminates
wind-energy projects where the migratory bird mortality levels are not
remediable. The commenter suggested that, without such thresholds, the
MBTA will be rendered meaningless.
Response: Our interpretation of the MBTA concludes that the statute
does not prohibit incidental take, including any resulting from wind-
energy facilities. However, the Service will continue to work with any
industry or entity that is interested in voluntarily reducing their
impacts on migratory birds to identify best practices that could reduce
impacts. With respect to the wind industry, the Service will continue
to encourage developers to follow our Land-based Wind Energy Guidance
developed through the collaboration of many different stakeholders,
including industrial and environmental interests.
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. The commenters noted that a well-designed
general permit system will also create efficiencies for industry by
removing regulatory uncertainty for developers and investors. Permit
holders would have no risk of prosecution provided they comply with the
terms of the permit. Further, it will discourage actors who fail to
avoid, minimize, or mitigate for the impacts of their activities from
gaming the system and taking advantage of the Service's limited
prosecutorial resources.
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. The Service eliminated
that alternative from further consideration because developing a
general-permit system would be a complex process and better suited to
analysis in a separate, subsequent proposal. Thus, we did not consider
developing a general permit program as suggested by the commenters.
[[Page 1149]]
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.
Response: Given our interpretation of the MBTA, the commenter's
proposal is not a viable option. This final rule defines the scope of
the MBTA to exclude incidental take, thus incidental take that occurs
anywhere within the United States and its territories is not an
enforceable violation. 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. The status of migratory bird populations in the areas described by
the commenter may be relevant in our decision to permit take under the
Service's current permit system.
Comment: Multiple commenters noted that M-Opinion 37050 and the
proposed action will likely result in increased mortality of migratory
birds. Thus, in combination with the already significant population
declines of many species, the proposed rule will almost certainly
result in the need to increase the number of bird species listed under
the Endangered Species Act (ESA) and increase the risk of extinction.
The commenters noted that such deleterious effects are a more than
sufficient basis to withdraw the proposed rule (and the underlying
Opinion). Given the Service's recent elimination in the ESA regulations
of automatic take protection for threatened species (subject to the
adoption of species-specific 4(d) regulations), the proposed rule will
have extremely deleterious impacts going forward as the Service
increasingly lists species as threatened without affording them any
protections for incidental take under the ESA. These entirely
foreseeable effects of the action proposed by the Service must be
analyzed in formal section 7 consultation under the ESA.
Response: While it is possible that this rule could potentially be
a contributing factor in the future ESA listing of a migratory bird
species, there is no requirement under section 7 to address the
potential effects of an action on a species that may hypothetically be
listed at some undetermined point in the future. Instead, section 7
requires an agency to analyze the effects of an action on currently
listed or proposed-to-be-listed species. This rulemaking will have no
effect on those species. 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.
Regarding the future listing of migratory birds as threatened
species, as stated in the final rule rescinding the ``blanket rules''
for threatened species (84 FR 44753, August 27, 2019) and restated
here, our intention is to finalize species-specific section 4(d) rules
concurrently with final listing or reclassification determinations.
Finalizing a species-specific 4(d) rule concurrent with a listing or
reclassification determination ensures that the species receives
appropriate protections at the time it is added to the list as a
threatened species.
Comment: Multiple commenters noted that the effects of this rule on
ESA-listed species must be seriously scrutinized in an EIS as well as
in section 7 consultation under the ESA. The proposed rule will harm
species that have already been listed as threatened and subject to
broad ESA section 4(d) regulations.
Response: The effects of this rule have been analyzed in the EIS
accompanying this rulemaking. Under the ESA, we have determined that
this rule regarding the take of migratory birds will have no effect on
ESA-listed species. This rule does not alter consultation requirements
under the ESA for migratory bird species also listed as endangered or
threatened species. 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. Thus, this proposed action would not have any effect on those
species.
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 has not issued any 4(d) rules or not-
warranted determinations with the understanding that MBTA protections
stemming from an interpretation that it prohibits incidental take would
still apply.
Comment: Multiple States commented that the proposed rule would
lead to further declines in migratory bird populations. 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. This series of events would lead to further restrictions and
require substantial resources to manage and ensure conservation and
recovery. This rulemaking may violate federalism rules, as States will
be required to use their budgets to implement migratory bird protection
actions, including regulation development and permit systems. The
limitation of State protections to projects within State borders,
coupled with the absence of the Service providing necessary leadership
and coordination would severely hinder migratory bird management and
recovery efforts nationwide.
Response: This rule would not violate any laws or executive branch
policy regarding unfunded mandates. 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. This rule would alter the
Service's interpretation of the MBTA to exclude incidental take from
its scope. Thus, it removes what had been a Federal requirement for
States to avoid engaging in or authorizing activities that incidentally
take migratory birds. This rule effectively removes that directive.
State partners are critical to the conservation of migratory birds, and
we encourage States to continue to conserve and manage migratory bird
species consistent with the MBTA and would be happy to engage with and
assist our State partners in their management and conservation of MBTA
species. 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. 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. However,
States may decide to expend resources for conservation and recovery of
these species due to this rulemaking.
Comment: How is the Service going to monitor bird populations to
ensure that this proposal does not lead to increased population
declines? If significant declines are noted, how will the Service
respond if declines are attributed to incidental take? The commenter
[[Page 1150]]
recommended including a clause to stop the implementation of this
proposed rule if populations are negatively impacted by incidental take
from anthropogenic sources.
Response: Monitoring bird populations is outside the scope of this
action. However, the Service continues to work with the bird
conservation community to identify, support, and implement bird-
monitoring programs. The Service is partner to multiple efforts to
track migratory bird populations (e.g., Partners in Flight Landbird
Plan, Avian Conservation Assessment Database, etc.). These efforts and
partnerships are not impacted by this rulemaking, and data will
continue to drive the actions of the Service to protect migratory
birds. The clause proposed by the commenter would be inconsistent with
our interpretation of the Act and would essentially add a requirement
to the MBTA. Only Congress can amend statutory language.
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 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. Given the success of the MBTA
to date, the commenter felt the proposed action was unnecessary.
Response: This rulemaking codifies our interpretation of the MBTA
as prohibiting only conduct directed at migratory birds. It should not
be viewed as standing in the way of the successful actions the
commenter notes. The Service will continue to work with State and local
governments as well as industry to implement voluntary measures to
reduce impacts to migratory birds. This rulemaking should increase that
cooperation and coordination by removing the specter of a potential
criminal prosecution, which has often acted as a deterrent for private
parties to share information with the Service on their impact on
migratory birds and work with the Service on conserving migratory bird
species. Economic effects on government entities are examined for each
alternative in the RIA.
Comment: Multiple commenters noted that the proposed action removes
all incentives for industry to work with the Service. The commenters
noted that through judicious enforcement and by working directly with
industries to develop and implement best management practices, the MBTA
has provided a key incentive for adopting common-sense practices that
protect birds. The commenters suggested that, without any legal
obligations, industries no longer need to consider how their activities
may harm migratory birds or take action to prevent any harm. Thus, it
is unlikely that the Service's implementation of voluntary measures
will result in benefits to birds.
Response: There are many other factors that influence an entity's
decision to implement measures that may protect migratory birds from
incidental take. In some cases, there are other Federal, State, Tribal,
or local laws and regulations that directly or indirectly require
actions to benefit or otherwise reduce impacts on migratory birds.
Federal statutes such as the Endangered Species Act and the Bald and
Golden Eagle Protection Act require entities to take steps to reduce
incidental take and protect habitat, which may in turn benefit
migratory birds and other wildlife. 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 addition, Federal agencies are required to
evaluate their impacts to the environment under NEPA. 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. NEPA also requires
Federal entities to assess potential mitigation of unavoidable adverse
environmental impacts, which may include analysis of project design or
mitigation measures that reduce potential impacts to migratory birds.
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. In 2019, in response to M-Opinion 37050,
California passed the Migratory Bird Protection Act, which makes it
unlawful to take or possess any migratory nongame bird protected under
the MBTA. Additional States may create new regulations to clarify that
they have jurisdiction to regulate or otherwise oversee incidental take
of migratory birds. Other factors entities consider include public
perception, status as a green company, size of company, cost of
implementation, perceived risk of killing migratory birds, or
availability of standard industry practices. Some entities may continue
to implement practices that reduce take for any of these reasons or
simply to reduce their perceived legal risk due to short- or long-term
uncertainty concerning future application of laws and regulations
governing take of migratory birds.
Comment: One commenter stated that the removal of Federal authority
to regulate incidental take of migratory birds could strongly affect
offshore-wind siting and management decisions. 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. 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. Without a Federal mechanism for
incorporating consideration of incidental take of migratory birds into
decision-making, it will be much more difficult to make informed
decisions that benefit bird populations.
Response: The Service works with offshore-wind-energy companies and
Federal and State agencies responsible for regulating this industry.
The Service will continue to work to provide recommendations for
voluntary measures and siting locations based on sound science.
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. This approach has long-term financial benefit as it
focuses on prevention rather than reparations in the future.
Response: The Service has provided in the past and will continue to
provide in the future technical assistance to interested parties to
implement measures to reduce negative effects on migratory birds.
Comment: One commenter suggested that in some cases incidental take
by industry should be considered purposeful since some of this
mortality is well studied, predictable, and there are easy low-cost
mitigation options available to reduce these takes. The commenter
contended that entities that choose not to implement known measures are
purposefully taking migratory birds.
Response: Incidental take refers to mortality that occurs in the
course of an activity that is not directed at birds and often does not
relate to birds in any
[[Page 1151]]
way--for example, the intent of building a wind turbine is generating
energy not killing birds. Though knowledge of the likely results of a
suspect's conduct may be relevant to determine whether a suspect has
the requisite intent to violate a criminal statute, it is not relevant
under the MBTA for two reasons: First, because criminal misdemeanor
violations under the MBTA are a strict-liability crime, they do not
require proof of intent. Second, the MBTA only prohibits actions that
are directed at migratory birds. An activity that causes incidental
take will never be directed at migratory birds regardless of the
actor's knowledge of the potential consequences.
Comment: The analysis under the Regulatory Flexibility Act shows
likely minimal economic benefit to all of the affected businesses. If
anything, this finding argues that the proposed rule is a solution in
search of a problem. In the commenters' experience the expenses of
taking measures to minimize incidental take are minor and even the
fines are minor to small businesses. 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.
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. This action is necessary to improve
consistency in enforcement of the MBTA's prohibitions across the
country and inform the public, businesses, government agencies, and
other entities what is and is not prohibited under the MBTA.
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. The commenters noted that there is currently a patchwork of
legal standards that protect migratory birds in each of the States. In
the absence of national protection against incidental take, each State
may seek to enforce or embolden existing State rules, thereby creating
additional regulatory uncertainty for industry. The inconsistency among
States in State code may complicate industry understanding of
expectations across the many States in which they operate, potentially
requiring multiple State permits to conduct business.
Response: It is appropriate for individual States to determine
whether and how to regulate incidental take of migratory birds, given
that the MBTA does not prohibit incidental take. 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. 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. 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. In fact, such partnerships
will likely become increasingly important to promote conservation of
migratory birds and lead to greater consistency in both conservation
and regulation nationwide.
Comment: One commenter stated that in an international forum the
United States agreed that the MBTA is a strict-liability statute
covering incidental take. 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. The United States disputed the
allegations, but acknowledged that the MBTA is a strict-liability
statute covering incidental take, writing: ``Under the MBTA, it is
unlawful by any means or manner, to pursue, hunt, take, capture [or]
kill any migratory birds except as permitted by regulation 16 U.S.C.
703-704. Except for the baiting of game birds, the MBTA is a strict
liability statute that allows for the imposition of criminal
penalties.'' This is clear evidence of the longstanding U.S. position
under international law, and in agreement with its treaty partners,
that the MBTA is a strict-liability statute covering incidental take.
The United States must honor its obligations under international law or
change them through an act of Congress.
Response: The language cited by the commenter simply refers to the
language of the MBTA and asserts that it is a strict-liability statute.
As described in the preamble to this rulemaking, the Service continues
to view the misdemeanor provision as a strict-liability crime
consistent with the majority of Federal courts that have ruled on the
issue. Any statements made by the United States in prior international
meetings regarding whether the MBTA prohibits incidental take would
have been consistent with the Department's interpretation of the MBTA
at that time, but we have since changed our position as reflected by
this rulemaking.
Comment: Multiple commenters stated that the rule sends a message
to industry that companies do not need to implement even modest
measures to prevent entirely foreseeable bird mortality. 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. In all three
categories, the Service is presently ill suited to fulfill the role
envisioned by the proposed rule. To pretend otherwise ignores the
agency's own established practices and guidance and constitutes another
failure of the Federal Government's trust responsibilities.
Response: We disagree with the commenters' assertion that this rule
signals that industry should not implement best management practices.
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. 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. The Service will continue to
investigate instances of unauthorized taking or killing directed at
migratory birds. This rulemaking will not affect those investigations.
Comment: A commenter noted that deaths of birds that are
preventable and foreseeable are, in the context of the MBTA, negligent.
Deliberate implies an intentional act, where foreseeable means
consequences that may be reasonably anticipated. Nevertheless, the
proposed rule attempts to parse the difference between definitions of
the terms ``deliberate'' and ``foreseeable.'' Regardless of the scale
and scope of destruction, the rule proposes to make deliberateness in
the form of passive negligence consequence-free. By specifying that
entities should be held liable only if they can be proven to have set
out to purposefully kill birds, the proposed rule flips the burden from
regulated entities to the government. 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: The rule does not attempt to parse the difference between
[[Page 1152]]
``deliberate'' and ``foreseeable.'' Those terms are not relevant to our
interpretation of the MBTA. We currently authorize, and will continue
to authorize, various activities that directly take migratory birds
through our permit regulations at 50 CFR part 21. The Service's Office
of Law Enforcement will continue to investigate unauthorized taking and
killing of migratory birds resulting from actions directed at migratory
birds. 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. In some sense, actions directed at
migratory birds are deliberate in nature, but the concept of
foreseeability is not relevant. Regarding the commenter's statements on
enforcing a negligence standard, the misdemeanor provision of the MBTA
contains no mental state requirement and is a strict-liability crime.
For this reason, we cannot introduce a mental-state requirement such as
negligence to the MBTA's misdemeanor provision.
Comment: Multiple commenters noted issues with how the proposed
rule and associated NEPA document define a ``Federal action.'' The
commenters noted that fundamental to this rulemaking effort is to
identify properly the major Federal action. Major Federal actions
include policy changes like M-Opinion 37050. 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. 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. The commenters stated
that, to proceed in any defensible fashion, the agency must reckon with
the consequence of adopting M-Opinion 37050 in the first place.
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. Thus, in our view, the M-Opinion was neither final
agency action nor major Federal action. It was simply the initial stage
of a process to alter agency practice to conform to the correct reading
of the MBTA regarding incidental take. We conducted the NEPA analysis
at the appropriate time to analyze the environmental effects of this
rulemaking to codify that interpretation. That analysis includes
comparing the effects of both interpretations.
Comment: A comment stated that an agency charged with administering
a statute cannot restrict, amend, repeal or expand it without
congressional approval. An agency has no authority to remove statutory
protections without congressional approval. A rulemaking cannot violate
a statute or make it inoperable and must be consistent with the
legislative intent of the law. 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 proposed rule would largely
make the statute inoperable, thus violating its congressional intent by
removing its purpose.
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. Nothing in this rulemaking changes the language or purpose of
the MBTA. Only Congress can enact or amend statutory language. The
proposed rule uses the commonly understood definition of ``incidental''
and does not purport to redefine that term in any way. As stated on
numerous occasions throughout this rule, the MBTA's criminal
misdemeanor provision is a strict-liability crime and we have no
authority to insert a mental state such as negligence into that
provision. That approach would require congressional action. The MBTA
will continue to operate as Congress intended it to operate. The
Service will continue to implement the full suite of regulations
authorizing conduct directed at migratory birds.
Comment: Multiple commenters suggest that the Service's choice to
release a proposed rule based on a policy change it is already
implementing, and conduct a NEPA analysis after-the-fact, turns NEPA on
its head. This confused order of events also hampers a fair public
understanding of the agency's proposed action, alternatives, and likely
impacts. The agency in essence has already been implementing the
underlying policy change that is reflected in the rulemaking without
the benefit of public review and comment at the time it made that
policy change.
Response: The procedures followed in this rulemaking process were
appropriate and lawful. 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. A draft EIS, issued subsequent to the proposed
rule on June 5, 2020, analyzed various alternatives, some of which were
discussed in the public webinars conducted as part of the NEPA scoping
process. Those alternatives analyze the environmental effects of both
prohibiting incidental take under the MBTA and excluding incidental
take under the MBTA and gave the public opportunity to comment on those
effects.
Comment: Multiple Tribes stated that this proposed action violates
multiple Tribal-specific treaties, dating back to the mid-1800s. These
treaties established the Federal Government's trust responsibility to
Federally Recognized Tribes. The Federal Indian trust responsibility is
a continuing fiduciary duty and legal obligation owed by the Federal
Government to Tribes as beneficiaries. Under the trust responsibility,
the United States is legally responsible for the protection of Tribal
lands, assets, resources, and treaty rights for the benefit of Tribes.
Government-to-government consultation is one facet of effectuation of
the trust responsibility. Several Tribes stated that they have no
record of receiving any communication or outreach from the Service or
DOI regarding the proposed regulation revisions or associated draft
EIS, much less an invitation to consult on either. The Tribes
recommended that the rulemaking process be paused so that intelligent
and respectful consultation with any Tribe that expresses interest in
response to the invitation to consult can proceed.
Response: The Service takes its Tribal trust responsibilities
seriously and completed government-to-government consultation when
requested. Prior to the publication of the proposed rule, the Service
held six public scoping webinars in March 2019, which were open to any
members of the public, including members of Federal and State agencies,
Tribes, non-governmental organizations, private industries, and
American citizens. 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.
Tribal representatives were allowed to ask questions and seek
clarifications. In addition, a letter was sent through our regional
offices to invite Tribes to engage in this proposed action via the
government-to-government consultation process. Nine Tribes requested
government-to-
[[Page 1153]]
government consultation. The Service completed these consultations
prior to publication of this final rule.
Comment: Contrary to the Service's position, the proposed
definition of incidental take would not improve the implementation of
the MBTA. 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.
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. We will
continue to interpret the misdemeanor provision of the MBTA as a
strict-liability provision with no mental-state requirement, including
intent.
Comment: One commenter noted that the recent Supreme Court ruling
in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), does not
support this rulemaking. In Bostock v. Clayton County, the Supreme
Court relied on the ``ordinary'' meaning of title VII of the Civil
Rights Act of 1964, to hold that it is unlawful to discriminate in
employment decisions based on individuals' sexual orientation. Id. at
1754. 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. at 1745. The Court reaffirmed
the longstanding principle that `` `the fact that [a statute] has been
applied in situations not expressly anticipated by Congress' does not
demonstrate ambiguity, instead, it simply `demonstrates [the] breadth'
of a legislative command.'' Id. at 1749 (citation omitted). 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. According to the proposed rule, Congress's purpose in enacting
the MBTA was to ``regulate the hunting of migratory birds,'' and thus
the broad prohibitions on any taking or killing of migratory birds
without authorization from the Service should be construed so as not to
encompass any taking or killing other than that specifically directed
at migratory birds. 85 FR at 5918, February 3, 2020. This, however, is
exactly the mode of statutory construction rebuffed by the Supreme
Court in Bostock.
Response: The Supreme Court's decision in Bostock is not applicable
to our interpretation of the MBTA. 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. 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. We do not
rely on an argument that section 2's application to incidental take
would demonstrate ambiguity simply because Congress could not have
foreseen that application in 1918. 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. Therefore, the Supreme Court's holding in Bostock does not
apply here.
Comment: The same commenter also noted that the recent Supreme
Court ruling in Dep't of Homeland Security v. Regents of the University
of California, 207 L. Ed. 2d 353 (2020), similarly does not support
moving forward with this rulemaking. In Homeland Security, the Supreme
Court rejected the Trump Administration's effort to rescind the
Deferred Action for Childhood Arrivals (``DACA'') program, partly
because the Department of Homeland Security (``DHS'') had sought to
justify its rescission of the entire program on the basis that certain
affirmative benefits should not be extended to DACA recipients while
failing to consider the policy alternative of decoupling the extension
of benefits from the deferral of deportation action. Id. at 375. The
Court held that ``when an agency rescinds a prior policy its reasoned
analysis must consider the `alternative[s]' that are `within the ambit
of the existing [policy].' '' Id. at 374, 375 (citation omitted). The
Court held that this ``omission alone renders [the agency's] decision
arbitrary and capricious.'' Id. at 375.
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. 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 . . . [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. According to the Service, this absence
of regulations designed to address incidental take, and the reliance
instead on discretionary enforcement, ``has resulted in regulatory
uncertainty and inconsistency,'' thus necessitating a ``truly national
standard'' and a ``uniform'' approach to implementation of the MBTA.
Id. 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''). This refusal to scrutinize an otherwise viable
alternative that would further the agency's own purported objective--
i.e., increasing certainty and consistency in enforcement--while also
promoting the conservation of migratory birds, constitutes precisely
the kind of arbitrary and capricious conduct that the Supreme Court
denounced in its ruling on the DACA rescission.
Response: The Court's holding in Homeland Security does not apply
to this rulemaking because the Service has considered the prior
Departmental interpretation and agency practice in developing this
rulemaking. Both the underlying M-Opinion and the preamble to this rule
analyzed the prior interpretation and explained both why it is
incorrect and why it does not provide the same level of certainty or
consistency in enforcement. 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. Thus, the Service
scrutinized alternatives to the preferred action of codifying our
interpretation that the MBTA does not prohibit incidental take.
Comment: A commenter stated that the prosecution of incidental take
under the MBTA does not violate due process. The Solicitor's M-Opinion
and the proposed rule cite due process concerns as one justification
for rolling back critical protections for migratory birds under the
MBTA. The commenter noted that as the Courts have advised, ``where an
otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to avoid
such problems unless such construction is plainly contrary to the
intent of Congress.'' The commenter claimed the Service appears
concerned that strict liability for incidental takes of migratory birds
does not provide adequate notice of what constitutes a violation and
would lead to absurd results. However, the interpretation of the MBTA
applying
[[Page 1154]]
strict liability to the law's criminal misdemeanor provision covering
incidental take raises no constitutional problems, nor is it contrary
to the intent of Congress. Rather, it is the only possible reading of
the MBTA that accomplishes its intended purpose.
Response: The commenter misconstrues our interpretation of the
MBTA's criminal misdemeanor provision in section 6. We agree that
strict liability applies to misdemeanor violations of the MBTA. The due
process concerns we raise in the preamble to this regulation apply to
the Department's prior interpretation of section 2 of the MBTA, rather
than the criminal provisions of section 6. The Service determines the
relevant language in section 2 to be ambiguous, which is consistent
with the views of most Federal courts. Potential due process concerns
are relevant when the language of a statute is ambiguous and assist in
divining its proper meaning. 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.
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. The fact that no permit program has ever existed for
incidental take demonstrates established precedent. 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.
Response: The commenters are correct that whether the Service
interprets the MBTA to prohibit or exclude incidental take, that
interpretation will not by itself resolve the current split in the
circuit courts. 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. See Chevron,
U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
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. 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 opposite would seem to be true. Regarding enforcement of
Federal law, the Department and the Service are obligated to interpret
and follow the law established by Congress. This rulemaking will
establish a firm position on enforcement of the MBTA as it applies to
incidental take and will not provide a moving target. The commenter's
assertion would be better applied to the Service's prior exercise of
enforcement discretion under the former interpretation, which left many
regulated entities uncertain whether their conduct violated the MBTA
and would be investigated by the Service. A primary reason for engaging
in this rulemaking is to remove any uncertainty in application of the
statute to alleviate precisely the concern voiced by this comment.
Comment: Multiple Tribes stated that the United Nations
``Declaration on the Rights of Indigenous Peoples'' (2007)
(``UNDRIP''), endorsed by the United States in 2010, recognizes that
indigenous people must give Free, Prior and Informed Consent for
projects affecting their interests, prior to approval of any project
affecting their land or territories. Multiple federally recognized
Tribes expect DOI to honor this policy in order to ensure no unilateral
actions are taken that affect Tribal land, territories or people
without Tribal consent.
Response: The UNDRIP--while not legally binding or a statement of
current international law--has both moral and political force. The
United States Government announced its support of the UNDRIP in 2010.
In its announcement, the United States explained that it recognizes the
significance of the Declaration's provisions on free, prior-and-
informed consent, which the United States understands to call for a
process of meaningful consultation with Tribal leaders--but not
necessarily the agreement of those leaders--before the actions
addressed in those consultations are taken.
To this end, the United States supports these aspirations of the
UNDRIP through the government-to-government consultation process when
agency actions may affect the interests of federally recognized Tribes.
The Service has sought to involve and consult with Tribes regarding
this rulemaking. Prior to the publication of the proposed rule, the
Service held a NEPA scoping webinar on March 16, 2020, that we allowed
only Tribal members to attend, with the sole purpose of informing
Tribes of the proposed action. The Service sought feedback from Tribal
representatives to inform the rulemaking process and address Tribal
concerns. We also sent a letter through our regional offices inviting
Tribes to engage in this proposed action via the government-to-
government consultation process. Nine Tribes and two Tribal councils
requested government-to-government consultation. The Service has
completed these consultations with all interested parties.
Comment: One commenter suggested that the proposed rule should be
abandoned because the meanings of ``take'' and ``kill'' need to be
given broad interpretations to achieve the remedial purpose of
protecting wildlife and remain consistent with the common law
definitions of these terms. The commenter stated that the Department
and the Service misinterprets the Fifth Circuit's narrow decision in
CITGO, 801 F.3d 477 (5th Cir. 2015), which only holds that the MBTA
does not impose strict liability for nonculpable omissions. Further,
the commenter noted that the notice of the proposed rule acknowledges
that Congress intended to adopt the common law definition of statutory
terms such as ``take.''
Response: The preamble to this rulemaking exhaustively explains our
interpretation of the terms ``kill'' and ``take'' in MBTA section 2. We
disagree with the commenter's conclusions and refer readers to our
analysis in the preamble.
Comment: One commenter stated that the proposed rule does not
address the Service's statutory authority to change the interpretation
of the MBTA. The commenter stated that the proposed rule does not
facilitate the Service's only authorized action under the statute,
which is the authority ``to determine when, to what extent, if at all,
and by what means, it is compatible with the terms of the conventions
to allow'' hunting, etc., of such birds, or any part, nest, or egg
thereof. The Service's proposal does not even address its actual
statutory authority.
Response: This proposal does not authorize the taking of migratory
birds; it defines the scope for when authorizations under section 703
are necessary and appropriate. Thus, it does not rely on the statutory
language quoted by the commenter. 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.
Comment: Multiple commenters stated that Solicitor's M-Opinion
37050 stands in direct conflict with Executive Order 13186 executed by
President
[[Page 1155]]
Clinton in 2001. 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. 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. Because E.O. 13186 has not to date been revoked, M-
Opinion 37050 and this rulemaking directly conflict with that standing
presidential directive. The Service must explain how the proposed rule
meets and affects its own responsibilities and those of other Federal
agencies under this Executive Order.
Response: We do not agree with the commenters that this rulemaking
conflicts with Executive Order 13186. This rulemaking does not directly
affect how Federal agencies manage incidental take as set forth in
memoranda of understanding (MOUs) developed under the Executive Order.
E.O. 13186 was not designed to implement the MBTA per se, but rather
was intended to govern Federal efforts to conserve migratory birds more
broadly. In any case, each Federal agency should continue to comply
with the Executive Order, and each agency with an MOU should continue
to carry out that MOU, including any conservation measures that reduce
incidental take, even though that take does not violate the MBTA.
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.
Response: The EIS analyzes the incremental impact of codifying M-
37050 and the alternative of returning to the interpretation of the
MBTA espoused by the prior Opinion, M-37041, which concluded the MBTA
does prohibit incidental take. The EIS compares the environmental
effects of both alternatives. Thus, the Service has analyzed the
environmental impacts of adopting either opposing interpretation of the
MBTA.
Comment: The Service must reconcile how this action aligns with
other legal statutes that protect birds and demonstrate how the rule
aligns with other statutory obligations such as the Fish and Wildlife
Conservation Act, which obligates monitoring for bird populations.
Response: The Service's implementation of the Fish and Wildlife
Conservation Act is not directly relevant to this rulemaking. The
Service will continue to monitor migratory bird species, particularly
species of concern and candidates for listing under the ESA. This
rulemaking will not significantly affect the Service's obligations
under other legal statutes that protect migratory birds.
Comment: Only a few years ago, the United States exchanged formal
diplomatic notes with Canada reaffirming our countries' common
interpretation that the treaty prohibited the incidental killing of
birds. 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.
Response: The exchange of diplomatic notes the commenter references
occurred in 2008 and did not amount to an agreement that prohibiting
incidental take was required by the Convention. Therefore, we do not
regard our current approach to be inconsistent with the 2008 diplomatic
exchange.
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.
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. Thus, we decline the commenter's request to
codify the prior interpretation as set forth in M-37041, which would
achieve the opposite effect.
Comment: One commenter stated that it is notable that no additional
alternatives were in the proposed rule. The commenter further noted
that the Service failed to disclose the thought process followed in the
selection of the proposed course of action in the proposed rule.
Therefore, the commenter requested that the proposed rule be revised to
include the three alternatives described in NEPA scoping and detailed
information about the implementation of each, ensuring all affected
parties are aware of the alternatives, through proper notice of
rulemaking, as well as how the Service made its choice. The rule should
be reissued in proposed form, allowing the public to weigh in on the
alternatives and on the Service's choice.
Response: An analysis of reasonable alternatives to a proposed
action is a requirement of the NEPA process. There is no requirement
under the APA to consider alternatives in a proposed rule. 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. The public comment period for the scoping notice
and the draft EIS provided opportunities to weigh in on the
alternatives to the proposed action. 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. 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.
Comment: A commenter stated that the proposed rule will result in a
dangerous slippery slope, making intent difficult to prove because if
there is no regulation for ``unintentional'' take, then anything could
be classified as ``incidental take.'' The proposed rule change puts the
burden of proof on the Service of determining ``intent,'' which can be
difficult or impossible to truly establish. Without retaining the legal
responsibility by individuals and/or companies under the existing MBTA,
there would be far less money available for mitigation of preventable
environmental damage.
Response: The proposed rule does not alter the burden of proof for
intentional take under the MBTA. Over 100 years of case law and
amendments to the statute have provided extensive guidance on the
requirements to prove intent under the criminal provisions of the MBTA.
This rulemaking will not disturb that case law or change our
enforcement of the statute in that context. 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. 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.
Comment: Some commenters noted that the application of the MBTA as
restricting anything other than intentional take of covered species
offends canons of American criminal law and is perhaps most absurd when
viewed in this light. The U.S. Supreme Court has held: ``Under a long
line of our decisions, the tie must go to the defendant. The rule of
lenity requires ambiguous criminal laws to be
[[Page 1156]]
interpreted in favor of the defendants subjected to them. . . . This
venerable rule not only vindicates the fundamental principle that no
citizen should be held accountable for a violation of a statute whose
commands are uncertain, or subjected to punishment that is not clearly
prescribed. It also places the weight of inertia upon the party that
can best induce Congress to speak more clearly and keeps courts from
making criminal law in Congress's stead.'' United States v. Santos, 553
U.S. 507, 514 (2008) (internal citations omitted).
Response: We agree with this comment.
Comment: Some commenters noted that the prosecution of individual
citizens or companies for the incidental take of migratory birds does
not benefit conservation efforts. A few commenters noted that their
industry sectors will continue to work with Federal and State agencies
and help them fulfill their mission to conserve, protect, and enhance
wildlife and their habitat for the continuing benefit of all people.
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. Removing the
threat of unwarranted legal attacks under the MBTA will allow
businesses to continue operating under good faith efforts to limit
impacts to migratory birds.
Response: We appreciate that the commenters have engaged with the
Service to advance conservation efforts that protect and enhance
wildlife, including migratory birds, and that commenters advocate
continued use of good faith efforts to limit impacts to migratory
birds.
Comment: One commenter noted that the proposed codification
differentiates between wanton acts of destruction and criminal
negligence, on the one hand, and the accidental or incidental take of a
protected bird, however regrettable, on the other. U.S. law has long
differentiated between harm caused by intent and harm caused by
accident. The proposed rulemaking extends that practice to the MBTA.
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.
Comment: One industry commenter claimed that an extreme application
of the MBTA imposes criminal liability any time a migratory bird is
killed incidental to another activity and would create an absurd and
likely disastrous scenario in which the majority of Americans could be
considered potential criminals. 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. 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. These are unfortunately realities of modern life and beyond
the scope of the MBTA. 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.''
Response: We agree with the commenter that interpreting the MBTA to
prohibit incidental take could potentially lead to some of the cited
absurd results. We refer the commenter to the analysis of the economic
impacts of interpreting the scope of the statute to prohibit incidental
take in the EIS and regulatory impact analysis conducted to comply with
Executive Orders 12866, 13563, and 13771.
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. 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.
Response: We agree with this comment.
Comment: One commenter questioned the evidence suggesting that this
rule change is warranted. The commenter questions what economic
progress has been halted due to the protections of the MBTA and how
this action is in the best interest of the American people.
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.
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. The commenter notes there is little mention in
either notice of biological impacts or assessment of bird species
protected by the Act. Interior and the Service fail to recognize that
the MBTA's singular statutory purpose is to protect and conserve
migratory birds. The U.S. Supreme Court described this purpose as ``a
national interest of very nearly the first magnitude,'' and the origin
of the statute to implement the international treaties signed for
migratory bird conservation must not be overlooked. This environmental
review should focus on the biological impacts and benefits to birds of
the proposed rule and any authorization program that the Service is
considering. It is misleading and simply false to suggest, as Interior
does, that any regulation of incidental take under the MBTA is unduly
burdensome.
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. Developing an authorization program
was not within the scope of our proposal. We disagree with the
commenter's interpretation of the MBTA and our nondiscretionary and
discretionary duties to implement the MBTA. We refer the commenter to
the EIS for analysis and discussion of the environmental impacts of the
proposal and reasonable alternatives. The Service will continue to
ensure that migratory birds are protected from direct take. 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.
Comment: As a policy matter, the Service has not justified its
departure from its prior interpretation of the Act, which was effective
in protecting migratory birds without undue regulatory burden.
Response: We respectfully disagree that the Service has not
justified its current interpretation of the MBTA. 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. As part of our duty as the agency
[[Page 1157]]
responsible for implementing the MBTA, we are obliged to present to the
public our interpretation of any ambiguous language that affects public
rights or obligations.
Comment: One commenter noted that the Service should not rely on
other statutes or regulations to absolve itself from addressing
incidental take. The commenter noted that the current administration is
relaxing a number of regulations such as the Clean Water Act and the
Endangered Species Act. 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.
Response: A wide array of statutory mandates provide protections to
wildlife, including migratory birds. 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. Our interpretation of the MBTA is primarily governed by the
language of the statute, its legislative history, and subsequent case
law. Whether other statutes provide protection to migratory birds is
not directly relevant to codifying our current interpretation. 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. 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.
Comment: One commenter requested that the Service remember their
treaty obligation to protect birds that are shared with other countries
that as independent nations could not ensure the protection of species
that migrate across borders.
Response: We acknowledge this comment and submit that we will
continue to implement relevant domestic laws and regulations and
provide technical advice and assistance to our treaty partners and
encourage continued conservation and protection of migratory birds to
the extent authorized by their domestic laws.
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 commenters noted that the proposed rule change is extremely limited
in scope as it fails to address the evolution of threats to migratory
birds or to ensure the sustainability of healthy 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. The commenters noted that international partners
would suffer the loss of the many benefits of migratory birds as the
United States rolls back its protective policies.
Response: We disagree that this rulemaking will result in a
substantial increase in the number of migratory birds killed. The EIS
notes that it may result in a measurable increase, but we do not expect
it to be substantial. In other words, there may be a measurable
difference but we do not expect it to substantially affect the existing
trajectory of the number of migratory birds killed. It is important to
note that the MBTA should not be relied upon by itself to reduce large-
scale impacts on migratory bird populations, whether or not it is
interpreted to prohibit incidental take. It is simply one tool in what
must be a multifaceted approach. Voluntary efforts and development of
industry best practices are an indispensable part of this approach,
particularly given that the substantial decreases in migratory bird
populations over the last 50 years have occurred despite the prior
agency practice of enforcing the MBTA with respect to incidental take.
We will continue to work with our domestic and international partners,
the regulated community, and the public at large to uphold our
commitment to ensure the long-term conservation of migratory birds
under the migratory bird Conventions.
Comment: The proposed rule ignores article IV of the amended Canada
treaty that the United States is to ``seek means to prevent damage to
such birds and their environments, including damage resulting from
pollution.'' Under the new interpretation of the MBTA, pollution is no
longer a considered factor as pollution is almost never a direct,
purposeful act. This failure to address threats beyond harvesting
undermines the United States' commitment under the amended Canada
treaty to ensure the long-term conservation of shared migratory bird
species.
Response: Our commitment to our treaty partners to prevent and
mitigate damage to migratory birds from pollution is implemented by
several domestic laws. 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 Department's assessment of
natural resource injuries under the Natural Resource Damage Assessment
Program includes any injury to migratory birds, which in many cases
could otherwise be classified as incidental take. We will continue to
implement these programs consistent with our treaty obligations.
Comment: One commenter stated that the proposed rule is not
consistent with section 2(a) of the Migratory Bird Treaty Act, which
states that ``it shall be unlawful at any time, by any means or in any
manner, to pursue, hunt, take, capture, kill . . . any migratory
bird.'' The key words regarding the prohibition of incidental take are
``at any time, by any means or in any manner.'' The words ``in any
manner'' means regardless of whether it is purposeful or not.
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. The preamble to this regulation explains the
correct context for that language and its relevance to whether the MBTA
prohibits incidental take.
Comment: Multiple commenters suggested that reinterpretation of the
MBTA will cause tension with Canada, whose migratory bird populations
will also be affected by rules that are more lenient.
Response: The Service has met with its counterparts in Canada
regarding the proposed rule. The Government of Canada submitted
comments on the draft EIS associated with this rulemaking. We
summarized and addressed substantive comments received from the
Government of Canada in Appendix C of the final EIS. Any impacts to
migratory birds that we share with Canada are also discussed in the
EIS.
Additionally, after publication of the final EIS, the Government of
Canada submitted a further comment expressing concern regarding this
rule. 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: Multiple comments stated that this proposed major shift in
policy and regulation in the MBTA will have international implications.
The commenters note that migratory birds
[[Page 1158]]
are a shared hemispheric resource, for which we are only custodians and
stewards while they are within the borders of the United States. Any
attempt to permanently weaken the MBTA, which will perpetuate, and
almost certainly increase, the level of injury and death of migratory
birds, needs concurrence by Canada, Mexico, Japan, and Russia if our
treaty obligations are to have any true meaning. The Service has not
addressed this international aspect in its planning and has not worked
with the State Department on the issue. With this proposed change, the
Service is making a unilateral change that will later be deemed an
abrogation of our international agreements with these other sovereign
nations.
Response: The MBTA, along with several other statutes, implements
the migratory bird Conventions. 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. We have undergone interagency review of this rulemaking at the
proposed and final stages facilitated by the Office of Management and
Budget, which included input from the State Department. We will not
speculate on the views of our Convention partners beyond the public
comments reflected here.
Comment: One commenter stated that this rule represents a
fundamental abdication of the Service's mission to protect native wild
birds. There is simply no question that the Service's history of
interpretation (until 2017) of the MBTA as applying to incidental take
has been the bulwark protecting tens of millions of birds from
unnecessary deaths.
Response: We do not agree with the commenter's assessment of this
rulemaking or that available data supports the commenter's analysis of
the Service's prior interpretation.
Comment: One commenter recommended that the Service consider to
what extent the proposed rule may increase regulatory uncertainty for
industrial entities and other stakeholders. This administration's
sudden policy change has thrown decades of practice and policy into
upheaval for all entities, including industry, Federal, State, local,
and international agencies, conservation groups, and more. 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. Additionally, the M-Opinion and the proposed rule may inject
more uncertainty about what is considered ``take'' compared to the
previous decades of enforcement. 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. Documents released under the
Freedom of Information Act reveal numerous questions from entities
since publication of the M-Opinion about what constitutes prohibited
take. This legal uncertainty also leads to scientific uncertainty about
future impacts on birds. This additional uncertainty should be
considered by the Service going forward.
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. Adopting the prior interpretation
through regulation would not provide any more long-term certainty in
this regard. Codification in the Code of Federal Regulations provides
the maximum certainty and permanence possible absent new legislation,
over which we have no control. To a certain extent, some degree of
short-term uncertainty is to be expected when a change in agency
practice occurs. We continue to provide technical advice when requested
regarding application of the MBTA in specific situations. The example
provided by the commenter regarding active nest removal is a clear case
of incidental take that is not prohibited by the MBTA, although it may
violate other Federal, State, Tribal, or local laws and regulations. If
the purpose of the referenced activity were specifically to remove
active bird nests, then that activity would still be a violation of the
MBTA and a permit would be required before any removal could lawfully
proceed. We will also continue to monitor bird populations in
partnership with State wildlife agencies and other stakeholders.
Comment: The proposed rule would harm States by depriving them of
the MBTA's protections for migratory birds that nest in, winter in, or
pass through their territories. The States own and hold migratory birds
in trust for their citizenry. Moreover, the States and their citizens
benefit from the role that migratory birds play in maintaining
ecological balance and the valuable ecological services that they
provide. The critically important ecological services these species
provide include insect and rodent control, pollination, and seed
dispersal. As the U.S. Supreme Court recognized 100 years ago, State-
level protections are insufficient to protect transient species that
travel outside of a State's territorial bounds. In a landmark decision
upholding the constitutionality of the MBTA, Justice Holmes wrote that
migratory birds, which ``yesterday had not arrived, tomorrow may be in
another State and in a week a thousand miles away'' can be ``protected
only by national action.'' Missouri v. Holland, 252 U.S. 416, 434-35
(1920). If left to the States, the result would be a patchwork of legal
approaches, reducing consistency nationwide. 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. Interior's
elimination of longstanding Federal protection harms State interests.
Response: The intent of this rulemaking is not to harm States, but
to interpret the MBTA in the manner Congress intended when it drafted
and enacted the statute. 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. The EIS associated with this rulemaking analyzes the broader
effects of codifying our interpretation. 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.
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. Simply stating that the
Service has used the best available science is not sufficient. The
commenter recommends the Service review its own web pages and the
scientific literature to show that incidental take of birds is a
significant problem. Adopting this regulation ignores that science and
fails to protect the environment. It also fails the intent of the
treaties. Providing a regulatory approach such as a permitting program
or a program based upon a gross negligence approach
[[Page 1159]]
would fulfill the Treaty obligations while also satisfying the intent
of E.O.s 12866 and 13563. The commenter called for the Office of
Information and Regulatory Affairs to review the justification for
consistency with these Executive Orders.
Response: The regulatory impact analysis developed for the proposed
rule documents compliance with Executive Orders 12866 and 13563 and was
reviewed and approved by OMB's Office of Information and Regulatory
Affairs. 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. We disagree that this rulemaking will have a
substantial impact on migratory bird populations when compared to prior
agency practice.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
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. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Codifying our interpretation that the MBTA does not prohibit
incidental take into Federal regulations would provide the public,
businesses, government agencies, and other entities legal clarity and
certainty regarding what is and is not prohibited under the MBTA. It is
anticipated that some entities that currently employ mitigation
measures to reduce or eliminate incidental migratory bird take would
reduce or curtail these activities given the legal certainty provided
by this regulation. Others may continue to employ these measures
voluntarily for various reasons or to comply with other Federal, State,
and local laws and regulations. The Service has conducted a cost-
benefit analysis which can be viewed online at https://beta.regulations.gov/docket/FWS-HQ-MB-2018-0090/document and https://www.fws.gov/regulations/mbta/.
Regulatory Flexibility Act and Small Business Regulatory Enforcement
Fairness Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small businesses,
small organizations, and small government jurisdictions. 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.
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. Thus, for an initial/final
regulatory flexibility analysis to be required, impacts must exceed a
threshold for ``significant impact'' and a threshold for a
``substantial number of small entities.'' See 5 U.S.C. 605(b). This
analysis first estimates the number of businesses impacted and then
estimates the economic impact of the rule.
Table 1 lists the industry sectors likely impacted by the rule.
These are the industries that typically incidentally take substantial
numbers of birds and that the Service has worked with to reduce those
effects. In some cases, these industries have been subject to
enforcement actions and prosecutions under the MBTA prior to the
issuance of M-37050. The vast majority of entities in these sectors are
small entities, based on the U.S. Small Business Administration (SBA)
small business size standards. Not all small businesses will be
impacted by this rule. Only those businesses choosing to reduce best
management practices will accrue benefits.
Table 1--Distribution of Businesses Within Affected Industries
----------------------------------------------------------------------------------------------------------------
Small
Number of business size Number of
NAICS industry description NAICS code businesses standard small
(employees) businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing................................. 114111 1,210 20 \(a)\ 1,185
Crude Petroleum and Natural Gas Extraction...... 211111 6,878 1,250 6,868
Drilling Oil and Gas Wells...................... 213111 2,097 1,000 2,092
Solar Electric Power Generation................. 221114 153 250 153
Wind Electric Power Generation.................. 221115 264 250 263
Electric Bulk Power Transmission................ 221121 261 500 214
Electric Power Distribution..................... 221122 7,557 1,000 7,520
Wireless Telecommunications Carriers (except 517312 15,845 1,500 15,831
Satellite).....................................
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau, 2012 County Business Patterns.
\a\ Note: The Small Business Administration size standard for finfish fishing is $22 million. Neither Economic
Census, Agriculture Census, nor the National Marine Fisheries Service collect business data by revenue size
for the finfish industry. Therefore, we employ other data to approximate the number of small businesses.
Source: U.S. Census Bureau, 2017 Economic Annual Survey.
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
[[Page 1160]]
measures to reduce incidental take of birds. Not all businesses in each
sector incidentally take birds. In addition, a variety of factors would
influence whether, under the previous interpretation of the MBTA,
businesses would implement such measures. 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. We did not
receive any information on that issue during the public comment period
for this rule.
This rule is deregulatory in nature and is thus likely to have a
positive economic impact on all regulated entities, and many of these
entities likely qualify as small businesses under the Small Business
Administration's threshold standards (see Table 1). By codifying the
Service's interpretation, first outlined in Solicitor's Opinion, M-
37050, this rulemaking would remove legal uncertainty for any
individual, government entity, or business entity that undertakes any
activity that may kill or take migratory birds incidental to otherwise
lawful activity. Such small entities would benefit from this rule
because it would remove uncertainty about the potential impacts of
proposed projects. Therefore, these entities will have better
information for planning projects and achieving goals.
However, the economic impact of the rule on small entities is
likely not significant. 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. In addition, many businesses will
continue to take actions to reduce effects on birds because these
actions are best management practices for their industry or are
required by other Federal or State regulations, there is a public
desire to continue them, or the businesses simply desire to reduce
their effects on migratory birds. For example, 13 States have oil pit
covering requirements.
This analysis examines the potential effect of the rule on small
businesses in selected industries. Following this discussion is a
summary of mitigation measures and costs (Table 6) and a summary of the
economic effects of the rule on the business sectors identified in
Table 1 (Table 7).
Finfish (NAICS 114111)
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. See 16 U.S.C. 1802. 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.
Table 6 shows example costs of some of the mitigation measures.
Data are unavailable regarding fleet size and how many measures are
employed on each vessel. Because data are unavailable about the
distribution of possible range of measures and costs, we do not
extrapolate cost data to small businesses. Table 2 shows the
distribution of businesses by employment size and average annual
payroll.
Table 2--Finfish NAICS 14111: Employment Sizes and Payroll \1\
------------------------------------------------------------------------
Average
Number of annual payroll
Employment size businesses per business
\2\
------------------------------------------------------------------------
Less than 5 employees................... 1,134 $62,000
5 to 9 employees........................ 45 372,000
10 to 19 employees...................... 23 639,000
20 to 49 employees...................... 20 2,837,000
50 to 99 employees...................... 5 4,333,000
100 to 249 employees.................... 4 13,941,000
------------------------------------------------------------------------
\1\ 2017 Economic Census.
\2\ Sales data are not available by employment size.
Crude Petroleum and Natural Gas Extraction (NAICS 211111)
The degree to which these small businesses may be impacted by the
rule is variable and is dependent on location and choice. 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. The remaining States represent approximately 24 percent of
businesses in the crude petroleum and natural gas extraction industry.
Since the Small Business Size Standard is less than 1,250 employees, we
assume all businesses are small. Table 3 shows the distribution of
businesses by employment size and sales.
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. 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. The distribution
and number of oil pits across the United States or across the remaining
States is unknown. Furthermore, the average number of oil pits per
business is unknown. An estimate for the number of pits is unknown
because some are ephemeral, present only while a well is being drilled,
and others last for the life of the well. The replacement timeline for
netting is also variable because hurricanes, strong winds, and strong
sun all have deleterious impacts on nets. Because data are unavailable
about the distribution or possible range of oil pits per business, we
do not extrapolate netting cost data to small businesses.
Table 3--Crude Petroleum and Natural Gas Extraction NAICS 21111: Employment Sizes and Sales \1\
----------------------------------------------------------------------------------------------------------------
Number of
Number of impacted Average sales
Employment size businesses businesses per business
(37 states)
----------------------------------------------------------------------------------------------------------------
Less than 5 employees........................................... 3,957 966 $1,473,000
[[Page 1161]]
5 to 9 employees................................................ 723 177 9,291,000
10 to 19 employees.............................................. 632 154 22,386,000
20 to 49 employees.............................................. 552 135 72,510,000
50 to 99 employees.............................................. 203 50 180,065,000
100 to 249 employees............................................ 156 38 344,694,000
250 employees or more........................................... 84 21 839,456,000
----------------------------------------------------------------------------------------------------------------
\1\ 2017 Economic Census.
Drilling Oil and Gas Wells (NAICS 213111)
The degree to which these small business in NAICS 213111 may be
impacted by the rule is variable and is dependent on location and
choice. 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. The remaining States represent approximately 32
percent of businesses in the crude petroleum and natural gas extraction
industry. Since the Small Business Size Standard is less than 1,000
employees, we assume all businesses are small. Table 4 shows the
distribution of businesses by employment size and sales.
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. 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. The distribution
and number of oil pits across the United States or across the remaining
States is unknown. Furthermore, the average number of oil pits per
business is unknown. An estimate for the number of pits is unknown
because some are ephemeral, present only while a well is being drilled,
and others last for the life of the well. The replacement timeline for
netting is also variable because hurricanes, strong winds, and strong
sun all have deleterious impacts on nets. Because data are unavailable
about the distribution or possible range of oil pits per business, we
do not extrapolate netting cost data to small businesses.
Table 4--Drilling Oil and Gas Wells NAICS 213111: Employment Sizes and Sales \1\
----------------------------------------------------------------------------------------------------------------
Number of
Number of impacted Average sales
Employment size businesses businesses per business
(37 states)
----------------------------------------------------------------------------------------------------------------
Less than 5 employees........................................... 1,217 393 $312,000
5 to 9 employees................................................ 289 93 1,674,000
10 to 19 employees.............................................. 299 97 3,300,000
20 to 49 employees.............................................. 330 107 11,791,000
50 to 99 employees.............................................. 150 48 17,454,000
100 to 249 employees............................................ 85 27 38,874,000
250 employees or more........................................... 52 17 140,769,000
----------------------------------------------------------------------------------------------------------------
\1\ Economic Census 2017.
Solar Electric Power Generation (NAICS 221114)
The degree to which these small businesses may be impacted by the
rule is variable and is dependent on location and choice. Some States
may have regulations that require monitoring bird use and mortality at
facilities; however, the number of States with regulations is unknown.
Table 5 shows the distribution of businesses by employment size and
sales.
Businesses located in States that do not have existing regulations
would have the option to reduce or eliminate best management practices
without potential litigation. As Table 6 shows, the cost of pre- and
post-construction bird surveys is unknown because data are not publicly
available and public comments were not received to estimate costs. Due
to these unknowns, we do not extrapolate cost data to small businesses.
Table 5--Solar Electric Power Generation NAICS 221114: Employment Sizes
and Sales \1\
------------------------------------------------------------------------
Number of Average sales
Employment size businesses per business
------------------------------------------------------------------------
Less than 5 employees................... 91 $6,792,000
5 to 9 employees........................ 28 4,518,000
10 to 19 employees...................... 21 5,806,000
20 to 49 employees...................... 14 19,754,000
50 to 99 employees...................... 6 64,296,000
[[Page 1162]]
100 to 249 employees.................... 5 51,170,000
------------------------------------------------------------------------
\1\ 2017 Economic Census.
Other Industries (NAICS 221115, 221121, 221122, and 517312)
For the selected industries, we do not provide further analysis
because minimal effects are expected on small businesses relative to an
environmental baseline based on current regulations and voluntary
conservation measures, due to the fact that mitigation costs are small
relative to the cost of projects (see Table 7). Because there is not
now, nor has there previously been a large-scale permit program for
incidental take, the baseline does not include the potential costs of
complying with such a program, including the regulatory uncertainty
associated with permit approval, compliance with other statutes (e.g.,
the National Environmental Policy Act), and potential litigation.
Summary
Table 6 identifies examples of bird mitigation measures and their
associated cost. Table 7 summarizes likely economic effects of the rule
on the business sectors identified in Table 1.
Table 6--Best Management Practices Costs by Industry \1\
----------------------------------------------------------------------------------------------------------------
Why data are not
Example of bird mitigation extrapolated to entire
NAICS industry measure Estimated cost industry or small
businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing (NAICS 11411)..... Changes in design of Costs are No data
longline fishing hooks, per vessel per year. available on fleet size.
change in offal $1,400 for No data
management practices, thawed blue-dyed available on how many
flagging or streamers on bait. measures are employed on
fishing lines. $150 for each vessel.
strategic offal
discards.
$4,600 for
Tori line.
$4,000 one-
time cost for
underwater setting
chute.
$4,000
initial and $50
annual for side
setting.
Crude Petroleum and Natural Gas Netting of oil $130,680 to Infeasible to
Extraction NAICS (211111). pits and ponds. $174,240 per acre to net pits larger than 1
Closed wastewater net ponds. acre due to sagging.
systems. Most netted Size
pits are \1/4\ to \1/ distribution of oil pits
2\ acre. is unknown.
Cost not Average number
available for of pits per business is
wastewater systems. unknown.
Closed
wastewater systems
typically used for
reasons other than bird
mitigation.
Drilling Oil and Gas Wells (NAICS Netting of oil $130,680 to Infeasible to
213111). pits and ponds. $174,240 per acre to net pits larger than 1
Closed loop net ponds. acre due to sagging.
drilling fluid systems. Cost not Size
available for closed distribution of oil pits
loop drilling fluid is unknown.
systems, but may be Average number
a net cost savings of pits per business is
in arid areas with unknown.
water conservation Closed loop
requirements. drilling fluid systems
typically used for
reasons other than bird
mitigation.
High variability
in number of wells
drilled per year (21,200
in 2019).
Solar Electric Power Generation Pre- and post-construction No public comments New projects can vary
(NAICS 221114). bird surveys. received to estimate from 100 to 5,000 acres
costs. in size, and mortality
surveys may not scale
linearly.
Wind Electric Power Generation Pre-construction Cost not Data not
(NAICS 221115). adjustment of turbine available for available for adjustment
locations to minimize adjustment of of turbine construction
bird mortality during turbine construction locations.
operations. locations. High variability
Pre- and post- $100,000 to in survey costs and high
construction bird surveys. $500,000 per variability in need to
Retrofit power facility per year conduct surveys.
poles to minimize eagle for pre-construction High variability
mortality. site use and post- in cost and need to
construction bird retrofit power poles.
mortality surveys.
$7,500 per
power pole with high
variability of cost.
Annual
nationwide labor
cost to implement
wind energy
guidelines: $17.6M.
Annual
nationwide non-labor
cost to implement
wind energy
guidelines: $36.9M.
[[Page 1163]]
Electric Bulk Power Transmission Retrofit power poles to $7,500 per power pole High variability in cost
(NAICS 221121). minimize eagle mortality. with high and need to retrofit
variability of cost. power poles.
Electric Power Distribution (NAICS Retrofit power poles to $7,500 per power pole High variability in cost
221122). minimize eagle mortality. with high and need to retrofit
variability of cost. power poles.
Wireless Telecommunications Extinguish non- Industry Data not available for
Carriers (except Satellite) flashing lights on towers saves hundreds of number of operators who
(NAICS 517312). taller than 350'. dollars per year in have implemented these
Retrofit towers electricity costs by practices.
shorter than 350' with extinguishing lights.
LED flashing lights. Retrofitting
with LED lights
requires initial
cost outlay, which
is recouped over
time due to lower
energy costs and
reduced maintenance.
----------------------------------------------------------------------------------------------------------------
\1\ Sources: FWS personnel, National Oceanic and Atmospheric Administration Revised Seabird Regulations
Amendment, eccnetting.com, statista.com, aerion.com, FWS Wind Energy Guidelines, FWS Public Records Act data,
FWS Eagle Conservation Plan Guidance.
Table 7--Summary of Economic Effects on Small Businesses
----------------------------------------------------------------------------------------------------------------
Bird mitigation
NAICS industry description NAICS code measures with Economic effects on small Rationale
no action businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing............. 11411 Changes in Likely minimal effects........ Seabirds are
design of specifically
longline excluded from the
fishing hooks, definition of
change in bycatch under the
offal Magnuson-Stevens
management Fishery
practices, and Conservation and
flagging/ Management Act, and
streamers on therefore seabirds
fishing lines. not listed under
the Endangered
Species Act may not
be covered by any
mitigation
measures. The
impact of this on
small entities is
unknown.
Crude Petroleum and Natural 211111 Using closed Likely minimal effects........ Thirteen States have
Gas Extraction. waste-water regulations
systems or governing the
netting of oil treatment of oil
pits and ponds. pits such as
netting or
screening of
reserve pits,
including measures
beneficial to
birds. In addition,
much of the
industry is
increasingly using
closed systems,
which do not pose a
risk to birds. For
these reasons, this
rule is unlikely to
affect a
significant number
of small entities.
Drilling Oil and Gas Wells.. 213111 Using closed Likely minimal effects........ Thirteen States have
waste-water regulations
systems or governing the
netting of oil treatment of oil
pits and ponds. pits, such as
netting or
screening of
reserve pits,
including measures
beneficial to
birds. In addition,
much of the
industry is
increasingly using
closed systems,
which do not pose a
risk to birds. For
these reasons, this
rule is unlikely to
affect a
significant number
of small entities.
Solar Electric Power 221114 Monitoring bird Likely minimal effects........ Bird monitoring in
Generation. use and some States may
mortality at continue to be
facilities, required under
limited use of State policies. The
deterrent number of States
systems such and the policy
as streamers details are
and reflectors. unknown.
Wind Electric Power 221115 Following Wind Likely minimal effects........ Following the Wind
Generation. Energy Energy Guidelines
Guidelines, has become industry
which involve best practice and
conducting would likely
risk continue. In
assessments addition, the
for siting industry uses these
facilities. guidelines to aid
in reducing effects
on other regulated
species like eagles
and threatened and
endangered bats.
Electric Bulk Power 221121 Following Avian Likely minimal effects........ Industry would
Transmission. Power Line likely continue to
Interaction use APLIC
Committee guidelines to
(APLIC) reduce outages
guidelines. caused by birds and
to reduce the take
of eagles,
regulated under the
Bald and Golden
Eagle Protection
Act.
Electric Power Distribution. 221122 Following Avian Likely minimal effects........ Industry would
Power Line likely continue to
Interaction use APLIC
Committee guidelines to
(APLIC) reduce outages
guidelines. caused by birds and
to reduce the take
of eagles,
regulated under the
Bald and Golden
Eagle Protection
Act.
[[Page 1164]]
Wireless Telecommunications 517312 Installation of Likely minimal effects........ Industry will likely
Carriers (except Satellite). flashing continue to install
obstruction flashing
lighting. obstruction
lighting to save
energy costs and to
comply with recent
Federal Aviation
Administration
Lighting Circular
and Federal
Communication
Commission
regulations.
----------------------------------------------------------------------------------------------------------------
As explained above and in the rationale set forth in Regulatory
Planning and Review, the economic effects on most or all regulated
entities will be positive and this rule is not a major rule under
SBREFA (5 U.S.C. 804(2)). The head of the agency therefore certifies
that the rule would not have a significant economic impact on a
substantial number of small entities.
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
This rule is an E.O. 13771 (82 FR 9339, February 3, 2017)
deregulatory action.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
a. This rule would not ``significantly or uniquely'' affect small
government activities. A small government agency plan is not required.
b. This rule would not produce a Federal mandate on local or State
government or private entities. Therefore, this action is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act.
Takings
In accordance with E.O. 12630, this rule does not contain a
provision for taking of private property, and would not have
significant takings implications. A takings implication assessment is
not required.
Federalism
This rule will not create substantial direct effects or compliance
costs on State and local governments or preempt State law. Some States
may choose to enact changes in their management efforts and regulatory
processes and staffing to develop and or implement State laws governing
birds, likely increasing costs for States. These efforts would require
increased expenditure of funds, but would not constitute direct
compliance costs. Therefore, this rule would not have sufficient
federalism effects to warrant preparation of a federalism summary
impact statement under E.O. 13132.
Civil Justice Reform
In accordance with E.O. 12988, we determined that this rule will
not unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
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. 3501 et seq.) is not
required. We may not conduct or sponsor, and you are not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act
We evaluated this regulation in accordance with the criteria of the
National Environmental Policy Act (NEPA), the Department of the
Interior regulations on Implementation of the National Environmental
Policy Act (43 CFR 46.10-46.450), and the Department of the Interior
Manual (516 DM 8). We completed an environmental impact statement (EIS)
analyzing the potential impacts of a reasonable range of alternatives
for this action. Based on the analysis contained within the final EIS,
the Service selected Alternative A--Promulgate regulations that define
the scope of the MBTA to exclude incidental take. 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. This regulatory change is not expected to change
current implementation or enforcement of the MBTA. 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. The Service's selection of this alternative and the basis for
that selection are provided in the Record of Decision signed by the
Director of the U.S. Fish and Wildlife Service.
Compliance with Endangered Species Act Requirements
Section 7 of the Endangered Species Act of 1973, as amended (ESA;
16 U.S.C. 1531-44), requires that ``The Secretary [of the Interior]
shall review other programs administered by him and utilize such
programs in furtherance of the purposes of this Act.'' 16 U.S.C.
1536(a)(1). 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 . . . 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. 1536(a)(2). We have
determined that this rule regarding the take of migratory birds will
have no effect on species listed under the provisions of the ESA. This
rule does not lessen the requirements under the ESA and thus, species
listed under the ESA continue to be afforded the full protection of the
ESA. Therefore, this action will not have any effect on these species.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior's manual at 512 DM 2, we considered the possible effects
of this rule on federally recognized Indian Tribes. The Department of
the Interior strives to strengthen its government-to-government
relationship with Indian Tribes through a commitment to consultation
with Indian Tribes and recognition of their right to self-governance
and Tribal sovereignty. We have evaluated this rule under the criteria
in Executive Order 13175 and under the Department's Tribal consultation
policy and have determined that this rule may have a substantial direct
effect on federally recognized Indian Tribes. We received
[[Page 1165]]
requests from nine federally recognized Tribes and two Tribal councils
for government-to-government consultation. Accordingly, the Service
initiated government-to-government consultation via letters signed by
Regional Directors and completed the consultations before issuing this
final rule. The results of these consultations are summarized in the
NEPA Record of Decision associated with this rulemaking, published at
http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090.
Energy Supply, Distribution, or Use (E.O. 13211)
E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. As noted above, this rule is
a significant regulatory action under E.O. 12866, but the rule is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. The action has not been otherwise
designated by the Administrator of OIRA as a significant energy action.
No Statement of Energy Effects is required.
List of Subjects in 50 CFR Part 10
Exports, Fish, Imports, Law enforcement, Plants, Transportation,
Wildlife.
Regulation Promulgation
For the reasons described in the preamble, we amend subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
PART 10--GENERAL PROVISIONS
0
1. The authority citation for part 10 continues to read as follows:
Authority: 16 U.S.C. 668a-d, 703-712, 742a-j-l, 1361-1384, 1401-
1407, 1531-1543, 3371-3378; 18 U.S.C. 42; 19 U.S.C. 1202.
0
2. Add Sec. 10.14 to subpart B to read as follows:
Sec. 10.14 Scope of the Migratory Bird Treaty Act.
The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. 703)
that make it unlawful at any time, by any means or in any manner, to
pursue, hunt, take, capture, or kill migratory birds, or attempt to
engage in any of those actions, apply only to actions directed at
migratory birds, their nests, or their eggs. 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.
George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-00054 Filed 1-5-21; 11:15 am]
BILLING CODE 4333-15-P