publication in the future. 703 mean `physical conduct of the sort engaged in by hunters and poachers. For these reasons, this rule is unlikely to affect a significant number of small entities. 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. Comment: A few commenters stated that the Department of the Interior's reinterpretation of the MBTA removed a broad layer of protection to birds against industrial harms and requested that the Service explain in the preamble how such action compounds or alleviates the findings of certain reports and other available science and biological dataincluding but not limited to data from Partners in Flight, the State of the Birds report, Christmas Bird Counts, Breeding Bird Surveys, and project-level nesting and demographic information that the Service has on file. Congress intended take to be read consistent with its common law meaningto reduce birds to human control. The Service will continue to investigate instances of unauthorized taking or killing directed at migratory birds. Nine Tribes requested government-to-Start Printed Page 1153government consultation. See id. In making that assumption, M-37041 improperly ignored the meaning and context of the actual acts prohibited by the statute. 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. 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. Table 7 summarizes likely economic effects of the rule on the business sectors identified in Table 1. 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. 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. 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. 3 with 16 U.S.C. 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. These markup elements allow the user to see how the document follows the The Public Inspection page may also 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. See, e.g., Response: Monitoring bird populations is outside the scope of this action. Comment: Although the MBTA was written in large part to address the then-largest threat to migratory birdshunters and poachersthe proposed rule offers no evidence to show its passage was intended to regulate only the activities that threatened birds in 1918. Response: The operative language originally enacted in section 2 of the MBTA has not substantively changed since 1936. better and aid in comparing the online edition to the print edition. 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. No public comments received to estimate costs. 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. . 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). Response: An analysis of reasonable alternatives to a proposed action is a requirement of the NEPA process. The Service drafted the proposed rule with sufficient flexibility to incorporate the alternatives analyzed in the draft EIS. The proposed rule will harm species that have already been listed as threatened and subject to broad ESA section 4(d) regulations. 99-445, at 16 (1986), reprinted in 1986 U.S.C.C.A.N. 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. EPA is a member of the Migratory Bird Conservation Commission, established in 1929 by the passage of the Migratory Bird Conservation Act, which was created and authorized to consider and approve any areas of land and/or water recommended by the . 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. Moon Lake, 45 F. Supp. This also includes the . 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. 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. Moon Lake, 45 F. Supp. Any ambiguity inherent in the statute's use of the terms take and kill is resolved by applying established rules of statutory construction. Based on the analysis contained within the final EIS, the Service selected Alternative APromulgate regulations that define the scope of the MBTA to exclude incidental take. The remaining States represent approximately 32 percent of businesses in the crude petroleum and natural gas extraction industry. Response: This rule would not violate any laws or executive branch policy regarding unfunded mandates. There is no embargo on hunting, at least down in South Carolina. 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: 1. Interior's elimination of longstanding Federal protection harms State interests. For example, some Members anticipated application of the MBTA to children who act `through inadvertence' or `through accident.' 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 word protection occurs in its first sentence. 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. 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. 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. . Wind Electric Power Generation (NAICS 221115), Pre-construction adjustment of turbine locations to minimize bird mortality during operations Pre- and post-construction bird surveys Others may continue to employ these measures voluntarily for various reasons or to comply with other Federal, State, and local laws and regulations. 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. Species protected are listed in 50 C.F.R. The critically important ecological services these species provide include insect and rodent control, pollination, and seed dispersal. The public comment period for the scoping notice and the draft EIS provided opportunities to weigh in on the alternatives to the proposed action. Moon Lake, 45 F. Supp. 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.). The Department appears to be rushing through this entire process to meet an arbitrary timeline. Comment: Multiple commenters recommended the Service clarify how the Service will continue to collect project-level data on industrial impacts to birds. 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. 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. That approach would require congressional action. 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). In the Second and Tenth Circuits, the Federal Government can apply the MBTA to incidental take, albeit with differing judicial limitations. . Congress specifically demonstrated its familiarity with the development of take liability in 1998 when it tackled the unfairness of strict liability in baiting cases. 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. Vultures are protected under the Migratory Bird Treaty Act, which prohibits the killing, possession, import, export, sale or purchase of any migratory bird or its parts. 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. A small government agency plan is not required. 3110. 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. An agency has no authority to remove statutory protections without congressional approval. The court in Moon Lake identified an important and inherent limiting feature of the MBTA's misdemeanor provision: To obtain a guilty verdict . 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. 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. These comments represented the views of multiple State and local government agencies, private industries, non-governmental organizations (NGOs), and private citizens. It is also noteworthy that those losses occurred despite the Department's prior interpretation of the MBTA as prohibiting incidental take. Electric Power Distribution (NAICS 221122), Wireless Telecommunications Carriers (except Satellite) (NAICS 517312), Extinguish non-flashing lights on towers taller than 350 Retrofit towers shorter than 350 with LED flashing lights, Industry saves hundreds of dollars per year in electricity costs by extinguishing lights Retrofitting with LED lights requires initial cost outlay, which is recouped over time due to lower energy costs and reduced maintenance. 13186 was not designed to implement the MBTA per se, but rather was intended to govern Federal efforts to conserve migratory birds more broadly. 105-26 (May 5, 1997) (authorizing indigenous groups to harvest migratory birds and eggs throughout the year for subsistence purposes). 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. The Service has sought to involve and consult with Tribes regarding this rulemaking. 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. 04/17/2023, 36 Under the ESA, we have determined that this rule regarding the take of migratory birds will have no effect on ESA-listed species. Protections and Prohibitions Nests used or built by state-Threatened birds must be protected from destruction or disturbance that constitutes take including harm or harassment while they are active. 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. However, the Service continues to work with the bird conservation community to identify, support, and implement bird-monitoring programs. 1555, Sec. In some cases, these industries have been subject to enforcement actions and prosecutions under the MBTA prior to the issuance of M-37050. Response: The enforcement of the MBTA is just one part of how the Service works with others to conserve migratory birds. documents in the last year, by the Federal Aviation Administration New Documents Upon closer examination, these statements are instead consistent with a limited reading of the MBTA. The EIS associated with this rulemaking analyzes the broader effects of codifying our interpretation. of the issuing agency. 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. 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. Osprey are protected by the Migratory Bird Treaty Act (MBTA) and may be afforded additional state protections in some loca-tions. 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 Land-based Wind Energy Guidelines are a voluntary approach to siting wind-energy facilities. 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 . Thus, Congress spoke clearly to the matter of whether the MBTA scope includes incidental takes and kills. (internal citations omitted)). 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). 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. documents in the last year, 998 However, that argument was rejected by a subsequent district court. Interior and the Service fail to recognize that the MBTA's singular statutory purpose is to protect and conserve migratory birds. 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. Birds have economic and ecosystem services value, and, if birds continue to decline, the economy and ecosystems will be compromised. the Federal Register. 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. Because entering the nesting area can result in raptors leaving their nests, eggs, and young, such action is considered a disturbance and prohibited by Federal and some state laws. This rulemaking will not disturb that case law or change our enforcement of the statute in that context. 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. This argument is contrary to the Supreme Court's admonition that Congress . 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. Implementing legislation for the treaty with the Soviet Union also did not amend section 2. 701-715) and section 8A(e) of the Endangered Species . Fish and Wildlife Service (hereafter Service). documents in the last year, 948 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.). 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. 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