Such specificity would not have been difficult to draft into the statute). We disagree with the commenter's interpretation of the MBTA and our nondiscretionary and discretionary duties to implement the MBTA. We summarized and addressed substantive comments received from the Government of Canada in Appendix C of the final EIS. 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. Response: The Service's implementation of the Fish and Wildlife Conservation Act is not directly relevant to this rulemaking. 1582 (Such trust in prosecutorial discretion is not really an answer to the issue of statutory construction in interpreting the MBTA.). 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. Id. The EIS associated with this rulemaking analyzes the broader effects of codifying our interpretation. 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. 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].' In this Issue, Documents Osprey are protected by the Migratory Bird Treaty Act (MBTA) and may be afforded additional state protections in some loca-tions. Comment: One commenter recommended following a Safe Harbor approach for industry that participates in avoidance, minimization, and mitigation measures. 3501 et seq.) 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. 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. Prosecutions for incidental take occurred in the 1970s without any accompanying change in either the underlying statute or Service regulations. 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. 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. . Ctr. The States own and hold migratory birds in trust for their citizenry. We will continue to interpret the misdemeanor provision of the MBTA as a strict-liability provision with no mental-state requirement, including intent. . See United States v. Apollo Energies, Inc., 611 F.3d 679, 689 (10th Cir. 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. Comment: Multiple States commented that the proposed rule would lead to further declines in migratory bird populations. Smith v. Goguen, 415 U.S. 566, 572-73 (1974). The commenter stated that the Department and the Service misinterprets the Fifth Circuit's narrow decision in CITGO, 801 F.3d 477 (5th Cir. structure Response: The UNDRIPwhile not legally binding or a statement of current international lawhas both moral and political force. 703 mean `physical conduct of the sort engaged in by hunters and poachers. 541, 549 (W.D. 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. 2003). offers a preview of documents scheduled to appear in the next day's 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. 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. The Migratory Bird Treaty Act (MBTA; 16 U.S.C. Monitoring bird use and mortality at facilities, limited use of deterrent systems such as streamers and reflectors. Trades Council, 485 U.S. 568, 575 (1988); cf. Resources 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. Interior and the Service fail to recognize that the MBTA's singular statutory purpose is to protect and conserve migratory birds. We currently authorize, and will continue to authorize, various activities that directly take migratory birds through our permit regulations at 50 CFR part 21. that I am heartily in sympathy with this legislation. xMigratory Bird Treaty Act of 1918 (16 U.S.C. 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. 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. 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. 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. It is also noteworthy that those losses occurred despite the Department's prior interpretation of the MBTA as prohibiting incidental take. To pretend otherwise ignores the agency's own established practices and guidance and constitutes another failure of the Federal Government's trust responsibilities. Until the ACFR grants it official status, the XML High variability in survey costs and high variability in need to conduct surveys. 1702. We also sent a letter through our regional offices inviting Tribes to engage in this proposed action via the government-to-government consultation process. 2012). We will explain that selection in a record of decision at the appropriate time. The Flyways noted that there was no advance notice of rulemaking to assess the implications of the proposed rule. We received 8,398 comments. 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. 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. Federal Register issue. 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. Comment: Some commenters noted that the prosecution of individual citizens or companies for the incidental take of migratory birds does not benefit conservation efforts. . 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. For these reasons, this rule is unlikely to affect a significant number of small entities. 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. Comment: A commenter noted that deaths of birds that are preventable and foreseeable are, in the context of the MBTA, negligent. 2d at 1209. 2015), which held that the MBTA does not prohibit incidental take. 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 . 1991); Mahler v. U.S. Forest Serv., 927 F. Supp. 85 FR at 5918, February 3, 2020. the current document as it appeared on Public Inspection on These species are protected under the Migratory Bird Treaty Act (1918) based on their international importance. 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. The proposal would essentially be adding language to the MBTA given our interpretation that it does not prohibit incidental take. 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. 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 are simply interpreting the existing language and not amending the statute or altering statutory language in this regulation. 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 . 1536(a)(1). Its provisions protect non-game and insectivorous birds that are notand have never beenintentionally pursued for game, poaching, or trafficking. . 1555, Sec. 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. Our interpretation of the MBTA is primarily governed by the language of the statute, its legislative history, and subsequent case law. 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. 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. on Foreign Affairs, 64th Cong. In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. 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. 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.). 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. 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 Land-based Wind Energy Guidelines are a voluntary approach to siting wind-energy facilities. 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. This rulemaking will not significantly affect the Service's obligations under other legal statutes that protect migratory birds. 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. However, Congress addressed hunting and habitat destruction in the context of the Migratory Bird Treaty through two separate acts: 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. & Constr. . Table 3Crude Petroleum and Natural Gas Extraction NAICS 21111: Employment Sizes and Sales1. 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. 20080 Before the House Comm. The Service has not addressed this international aspect in its planning and has not worked with the State Department on the issue. 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. Id. Table 6Best Management Practices Costs by Industry1, Table 7Summary of Economic Effects on Small Businesses. Comment: Contrary to the Service's position, the proposed definition of incidental take would not improve the implementation of the MBTA. 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). If left to the States, the result would be a patchwork of legal approaches, reducing consistency nationwide. 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. This rule would alter the Service's interpretation of the MBTA to exclude incidental take from its scope. This legal uncertainty also leads to scientific uncertainty about future impacts on birds. 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. documents in the last year, by the Centers for Medicare & Medicaid Services Second, the MBTA only prohibits actions that are directed at migratory birds. 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. 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