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. 04/17/2023, 273 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 Start Printed Page 1151wayfor example, the intent of building a wind turbine is generating energy not killing birds. 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. That approach would require congressional action. Because data are unavailable about the distribution of possible range of measures and costs, we do not extrapolate cost data to small businesses. 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. 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. Nine Tribes and two Tribal councils requested government-to-government consultation. The term extrahazardous activities is not found anywhere in the statute and is not defined by either the court or the Service. include documents scheduled for later issues, at the request 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. Source: U.S. Census Bureau, 2012 County Business Patterns. 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. We decline to adopt this proposal for the same reasons we rejected application of a gross-negligence standard. This table of contents is a navigational tool, processed from the See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. In some cases, these industries have been subject to enforcement actions and prosecutions under the MBTA prior to the issuance of M-37050. The Service will continue to ensure that migratory birds are protected from direct take. This EIS was open for public comments, and comments focused on these analyses are addressed within the final EIS. 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. 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. Rather, each requires a deliberate action specifically directed at achieving a goal. on We explain the meaning of the terms take and kill in the context of section 2 in turn below. 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. Under the ESA, we have determined that this rule regarding the take of migratory birds will have no effect on ESA-listed species. 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). These are unfortunately realities of modern life and beyond the scope of the MBTA. on Since the Small Business Size Standard is less than 1,000 employees, we assume all businesses are small. Some courts have attempted to interpret a number of floor statements as supporting the notion that Congress intended the MBTA to regulate more than just hunting and poaching, but those statements reflect an intention to prohibit actions directed at birdswhether accomplished through hunting or some other means intended to kill birds directly. This legal uncertainty also leads to scientific uncertainty about future impacts on birds. Wind Electric Power Generation (NAICS 221115), Pre-construction adjustment of turbine locations to minimize bird mortality during operations Pre- and post-construction bird surveys 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. 703(a). 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. documents in the last year, 10 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. 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. Under very limited circumstances, the Service may issue permits to take active nests. 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. 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.' . 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. 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. 704(a). In rural areas, vultures have been known to predate young or vulnerable livestock, which is of great concern . These can be useful 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. ), we have determined the following: a. 3329 (Mar. Aug. 11, 2020) (dismissing constitutional concerns, but on the basis that the relevant language is unambiguous). . Thus, we did not consider developing a general permit program as suggested by the commenters.Start Printed Page 1149. 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. Also included are migratory birds and other species protected by state rules. Thus, it removes what had been a Federal requirement for States to avoid engaging in or authorizing activities that incidentally take migratory birds. Second, the MBTA only prohibits actions that are directed at migratory birds. 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. Comment: Multiple Tribes stated that this proposed action violates multiple Tribal-specific treaties, dating back to the mid-1800s. The act included a broad range of prohibitions . The mission of the Migratory Bird Permit Program is to promote long-term conservation of migratory birds and their habitats and encourage joint stewardship with others. The statute makes it unlawful without a waiver to pursue, hunt, take, capture, kill, or sell nearly 1,100 species of birds . In the Second and Tenth Circuits, the Federal Government can apply the MBTA to incidental take, albeit with differing judicial limitations. for better understanding how a document is structured but 11 (1917) (statement of E. W. Nelson, Chief Bureau of Biological Survey, Department of Agriculture). 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. 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. See Bob Stump National Defense Authorization Act for Fiscal Year 2003, Public Law 107-314, Div. Comment: One commenter recommended that the Service prohibit incidental take that results from an extra-hazardous activity. Comment: How is the Service going to monitor bird populations to ensure that this proposal does not lead to increased population declines? Therefore, these entities will have better information for planning projects and achieving goals. This rule will not create substantial direct effects or compliance costs on State and local governments or preempt State law. We will also continue to monitor bird populations in partnership with State wildlife agencies and other stakeholders. 04/17/2023, 867 The proposed rule will harm species that have already been listed as threatened and subject to broad ESA section 4(d) regulations. 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. 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. Working with others to conserve, protect and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people. 252 U.S. 416, 432-33 (1920). The announcement was not considered in developing this final rule. Federal regulation of hunting was also legally tenuous at that time. In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. Cost not available for wastewater systems. 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. documents in the last year, 439 The final EIS and Regulatory Impact Analysis analyze the ecosystem services, such as insect consumption, provided by migratory birds. MIGRATORY BIRD TREATY ACT (MBTA) . documents in the last year, 29 Another example are ground cavity-nesting species, such as burrowing owl or bank swallow. . 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. The commenters noted that a well-designed general permit system will also create efficiencies for industry by removing regulatory uncertainty for developers and investors. These are the industries that typically incidentally take substantial numbers of birds and that the Service has worked with to reduce those effects. 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. 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. Statements from individual Congressmen evince a similar focus on hunting. 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. 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. The following text presents the substantive comments we received and responses to them. headings within the legal text of Federal Register documents. . 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. The public comment period for the scoping notice and the draft EIS provided opportunities to weigh in on the alternatives to the proposed action. 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. These entirely foreseeable effects of the action proposed by the Service must be analyzed in formal section 7 consultation under the ESA. Seabirds are specifically excluded from the definition of bycatch under the Magnuson-Stevens Fishery Conservation and Management Act, and therefore seabirds not listed under the Endangered Species Act may not be covered by any mitigation measures. If active migratory bird nests are purposefully disturbed on a project site, take the following steps: 1. 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. We respectfully disagree with the district court's decision and have addressed the court's findings where appropriate in the discussion below. 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