The remaining States represent approximately 24 percent of businesses in the crude petroleum and natural gas extraction industry. 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. When an intentional take permit is issued, conditions of that permit request any information on incidental mortalities that are discovered. Response: The UNDRIPwhile not legally binding or a statement of current international lawhas both moral and political force. 1802. Rather, it should extend that comment period by 45 days or more. 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. 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. 3110. Birds have economic and ecosystem services value, and, if birds continue to decline, the economy and ecosystems will be compromised. See, e.g., Cable & Telecommunications Ass'n v. Brand X internet Svcs., 545 U.S. 967 (2005). documents in the last year, 299 The word protection occurs in its first sentence. Pa. 1997). 703 mean `physical conduct of the sort engaged in by hunters and poachers. Subsequent legislative history does not undermine a limited interpretation of the MBTA, as enacted in 1918. The MBTA states that unless permitted, it is unlawful to . There are also State and local laws that would prevent the unnecessary killing of birds. Ind. 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. 2002), vacated on other grounds sub nom. Response: The MBTA, along with several other statutes, implements the migratory bird Conventions. documents in the last year, 1416 The replacement timeline for netting is also variable because hurricanes, strong winds, and strong sun all have deleterious impacts on nets. 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. The MBTA will continue to operate as Congress intended it to operate. 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. 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. 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. [FR Doc. 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. 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. Senator Smith, who introduced and championed the Act . documents in the last year, 28 FWS-HQ-MB-2018-0090 and at https://www.doi.gov/solicitor/opinions. 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. 4816 (statement of Sen. Smith) (1917). The rule also presents a false choice between regulatory certainty and implementing the MBTA. The Public Inspection page If these species are known to occur in the area, before destroying a nest of this type we recommend consulting with an expert who can help determine whether adults, eggs, or chicks are present. 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. This rulemaking will have no effect on those species. As a biological monitor, I presented environmental trainings, conducted pre-activity surveys, conducted BMP inspections, conducted migratory bird surveys, monitored construction within critical . 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. 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. 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. 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. Federal Register. 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. 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. 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. We received Start Printed Page 1165requests from nine federally recognized Tribes and two Tribal councils for government-to-government consultation. 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. Thus, this proposed action would not have any effect on those species. 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. M-37050 is available on the internet at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. 99-445, at 16 (1986), reprinted in 1986 U.S.C.C.A.N. the official SGML-based PDF version on govinfo.gov, those relying on it for . Comment: One commenter recommended that the Service prohibit incidental take that results from an extra-hazardous activity. Permit holders would have no risk of prosecution provided they comply with the terms of the permit. . 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. No data available on fleet size. at 526-27 (1896) (quoting 2 Blackstone Commentary 410). on The proposed rule uses the commonly understood definition of incidental and does not purport to redefine that term in any way. 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. See, e.g., U.S. (internal citations omitted)). 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. I want it to go through, because I am up there every fall, and I know what the trouble is. 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. 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. Section 7 of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. The commenter Start Printed Page 1150recommended including a clause to stop the implementation of this proposed rule if populations are negatively impacted by incidental take from anthropogenic sources. Federal Register provide legal notice to the public and judicial notice documents in the last year, by the Federal Aviation Administration This rule addresses the Service's responsibilities under the MBTA. is not required. documents in the last year, 37 documents in the last year, 883 The current iteration of the relevant languagemaking 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 birdswas adopted in 1935 as part of the Mexico Treaty Act and has remained unchanged since then. 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. To pretend otherwise ignores the agency's own established practices and guidance and constitutes another failure of the Federal Government's trust responsibilities. However, the Service continues to work with the bird conservation community to identify, support, and implement bird-monitoring programs. edition of the Federal Register. Nest Removal. . 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. If an industry sector has new or different information, we encourage them to submit those data to the Service for review and consideration. There is no embargo on hunting, at least down in South Carolina. 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. Comment: Multiple commenters recommended the Service clarify how the Service will continue to collect project-level data on industrial impacts to birds. There has been no express delegation of law-making duties or authority to amend the MBTA. However, if the nest is abandoned or no . 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. Within 48 hours, or as soon as possible, provide NRM with an initial assessment of the situation. 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. Businesses located in States that do not have existing regulations would have the option to reduce or eliminate best management practices without potential litigation. The proposal would essentially be adding language to the MBTA given our interpretation that it does not prohibit incidental take. Response: Congress's primary concern when enacting the MBTA in 1918 was hunting, poaching, and commercial overexploitation of migratory birds. Comment: The original legislative intent of the MBTA was the protection and sustainability of migratory bird populations. The Service will continue to work with partners to address migratory bird declines outside of a regulatory context. The Service provided alternatives to the proposed action and has not predetermined any outcome of the NEPA process. 2015); Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110 (8th Cir. the Federal Register. 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. No Statement of Energy Effects is required. Response: The Service agrees with this comment. We respectfully disagree with that court's opinion and have finalized this rulemaking consistent with the Supreme Court's holding in Brand X. In addition to the MBTA, other Federal and State laws protect birds and require specific actions to reduce project-related impacts. Osprey are protected by the Migratory Bird Treaty Act (MBTA) and may be afforded additional state protections in some loca-tions. 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