Available at: . 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. We note, however, that NEPA does not provide substantive environmental protections by itself. on Foreign Affairs, 64th Cong. 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. 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. We respectfully disagree with that court's opinion and have finalized this rulemaking consistent with the Supreme Court's holding in Brand X. 190. [I]nadvertence in this statement refers to the boy's mens rea. The U.S. Supreme Court has held: Under a long line of our decisions, the tie must go to the defendant. which are directed immediately and intentionally against a particular animalnot acts or omissions that indirectly and accidentally cause injury to a population of animals. Sweet Home, 515 U.S. at 719-20 (Scalia, J., dissenting) (agreeing with the majority opinion that certain terms in the definition of the term take in the Endangered Species Act (ESA)identical to the other prohibited acts referenced in the MBTArefer to deliberate actions, while disagreeing that the use of the additional definitional term harmused only in the ESAmeant that take should be read more broadly to include actions not deliberately directed at covered species); see also United States v. CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. 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. We will continue to implement these programs consistent with our treaty obligations. 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. 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 Service is committed to working with those that voluntarily seek to reduce their project-related impacts to migratory birds. 703 et seq.) 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. . Pa. 1997). Senator Smith, who introduced and championed the Act . 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. In accordance with E.O. 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. 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. 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. 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. 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 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. Accordingly, the Service initiated government-to-government consultation via letters signed by Regional Directors and completed the consultations before issuing this final rule. Interagency review limited to Federal agencies occurred prior to issuance of the proposed rule under procedures required by Executive Order Start Printed Page 114512866 and implemented by the Office of Management and Budget. 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. . 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: Contrary to the Service's position, the proposed definition of incidental take would not improve the implementation of the MBTA. for better understanding how a document is structured but Ark. There are also State and local laws that would prevent the unnecessary killing of birds. Search for volunteer opportunities around the country, News about wonderful wild things and places, FWS is taking steps to mitigate climate impacts, Search employment opportunities with USFWS, Minnesota Valley NWR - Fire as a Land Management Tool, Candidate Conservation Agreements (CCA & CCAA), Coastal Barrier Resources Act Project Consultation, Coastal Barrier Resources System Property Documentation. 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. 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. One of the alternatives reverts to the prior interpretation of the MBTA described in Solicitor's Opinion M-37041. U.S. law has long differentiated between harm caused by intent and harm caused by accident. 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. Comment: Multiple commenters noted that M-Opinion 37050 and the proposed action will likely result in increased mortality of migratory birds. Comment: Multiple commenters noted that the process being used for this rulemaking is unconventional. 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. Take and possession under MBTA can be authorized through regulations, such as hunting regulations, or permits, e.g., salvage, research, . 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. Not all small businesses will be impacted by this rule. 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. E.O. 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. 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. at 1581 (referencing S. Rep. No. 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. To the contrary, there are several situations where kill retains independent meaning. The President of the United States issues other types of documents, including but not limited to; memoranda, notices, determinations, letters, messages, and orders. The Land-based Wind Energy Guidelines are a voluntary approach to siting wind-energy facilities. 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. See 16 U.S.C. This rulemaking will have no effect on those species. In the Second and Tenth Circuits, the Federal Government can apply the MBTA to incidental take, albeit with differing judicial limitations. 1536(a)(1). 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. 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. 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. 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 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. 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. 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 impact of this on small entities is unknown. While every effort has been made to ensure that In this case, the Service appears at the scoping phase to have already selected the outcome it intended to reach. This document has been published in the Federal Register. documents in the last year, 825 Federal regulation of hunting was also legally tenuous at that time. We disagree that this rulemaking will have a substantial impact on migratory bird populations when compared to prior agency practice. This also includes the nests, eggs or chicks of protected birds. This site displays a prototype of a Web 2.0 version of the daily The Technicians immediately identified three mourning doves, which are protected by the Migratory Bird Treaty Act. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). The Service is partner to multiple efforts to track migratory bird populations (e.g., Partners in Flight Landbird Plan, Avian Conservation Assessment Database, etc.). During the period . L. 79-404, 60 Stat. The degree to which these small businesses may be impacted by the rule is variable and is dependent on location and choice. . This argument is contrary to the Supreme Court's admonition that Congress . We continue to provide technical advice when requested regarding application of the MBTA in specific situations. 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. Because House Sparrows and European Starlings are exotic species, they are not protected by the Migratory Bird Treaty Act. 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. 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 removal of longstanding protections, including consideration of a permitting framework. . Economic effects on government entities are examined for each alternative in the RIA. 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. The NEPA process provides a broad analysis of the environmental and socioeconomic impacts of reasonable alternatives to the agency's proposal. 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.' Response: This rule would not violate any laws or executive branch policy regarding unfunded mandates. One alternative in the draft EIS covers the expected effects of reverting to the Department's prior interpretation of the statute. 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. Comment: One commenter stated that it is notable that no additional alternatives were in the proposed rule. documents in the last year, 948 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. 2015), which held that the MBTA does not prohibit incidental take. 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. Section 7 of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. We have developed this rule in a manner consistent with these requirements. documents in the last year, by the Animal and Plant Health Inspection Service 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. However, there needs to be language that allows for the prosecution of individuals who are grossly negligent. 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. . 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. The Government of Canada submitted comments on the draft EIS associated with this rulemaking. Only those businesses choosing to reduce best management practices will accrue benefits. ), we have determined the following: a. Instead, the opposite is true. 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. 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. This rulemaking will not significantly affect the Service's obligations under other legal statutes that protect migratory birds. 65-243, at 2 (1918) (letter from Secretary of State Robert Lansing to the President)). Adopting this regulation ignores that science and fails to protect the environment. 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. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. We completed an environmental impact statement (EIS) analyzing the potential impacts of a reasonable range of alternatives for this action. 04/17/2023, 867 Birds have economic and ecosystem services value, and, if birds continue to decline, the economy and ecosystems will be compromised. Thus, we are simply interpreting the existing language and not amending the statute or altering statutory language in this regulation. Often, monitoring of industrial projects is not conducted, and when it is, the Service rarely gets reports of the findings. . structure Even though destruction of nest by itself is not prohibited under the MBTA, nest destruction that results in the unpermitted take ofmigratory birds, or their eggs, is illegal and fully prosecutable under the MBTA. . 55 Cong. 2002), vacated on other grounds sub nom. Permits are seldom granted. Id. FWS-HQ-MB-2018-0090. The Service has completed these consultations with all interested parties. We summarized and addressed substantive comments received from the Government of Canada in Appendix C of the final EIS. 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. Thus, we decline the commenter's request to codify the prior interpretation as set forth in M-37041, which would achieve the opposite effect. The commenter noted that the current administration is relaxing a number of regulations such as the Clean Water Act and the Endangered Species Act. 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. . on 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. High variability in number of wells drilled per year (21,200 in 2019). 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. Response: Project-level information is still recorded when a project proponent engages the Service for technical assistance. 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. 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Allows for the prosecution of individuals who are grossly negligent to which these small businesses may be impacted by rule! Mens rea 's mens rea programs consistent with our Treaty obligations 9th Cir and.

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