Rec. For example, 13 States have oil pit covering requirements. Because data are unavailable about the distribution of possible range of measures and costs, we do not extrapolate cost data to small businesses. The following text presents the substantive comments we received and responses to them. This confused order of events also hampers a fair public understanding of the agency's proposed action, alternatives, and likely impacts. Comment: One commenter focused on impacts of wind energy and suggested that the final rule should provide language that terminates wind-energy projects where the migratory bird mortality levels are not remediable. The prior M-Opinion posited that amendments to the MBTA imposing mental state requirements for specific offenses were only necessary if no mental state is otherwise required. 104-28 (Dec. 14, 1995) (outlining conservation principles to ensure long-term conservation of migratory birds, amending closed seasons, and authorizing indigenous groups to harvest migratory birds and eggs throughout the year for subsistence purposes); Protocol between the Government of the United States of America and the Government of the United Mexican States Amending the Convention for Protection of Migratory Birds and Game Mammals, Sen. Treaty Doc. Response: The operative language originally enacted in section 2 of the MBTA has not substantively changed since 1936. $4,000 initial and $50 annual for side setting. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. Destruction of these nests requires a permit at all times, whether or not they are occupied and in-use. 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. The component actions of take involve direct actions to reduce animals to human control. 1702. Response: There are many other factors that influence an entity's decision to implement measures that may protect migratory birds from incidental take. Individual States therefore rely on Federal law (and the international treaties implemented by Federal law) to protect their own bird populations when individual birds migrate beyond their boundaries. . 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. 4, 1972) (Japan Convention); Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, 29 U.S.T. The United States must honor its obligations under international law or change them through an act of Congress. Both the underlying M-Opinion and the preamble to this rule analyzed the prior interpretation and explained both why it is incorrect and why it does not provide the same level of certainty or consistency in enforcement. We evaluated this regulation in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), and the Department of the Interior Manual (516 DM 8). Many comments included additional attachments (e.g., scanned letters, photographs, and supporting documents). The Migratory Bird Treaty Act makes it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, . The commenter noted that as the Courts have advised, where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. The commenter claimed the Service appears concerned that strict liability for incidental takes of migratory birds does not provide adequate notice of what constitutes a violation and would lead to absurd results. In rural areas, vultures have been known to predate young or vulnerable livestock, which is of great concern . Given the success of the MBTA to date, the commenter felt the proposed action was unnecessary. See Rollins, 706 F. Supp. 50 CFR 10.12. Yet what is legal in the Fifth and Eighth Circuits may become illegal as soon as an operator crosses State lines into the bordering Tenth Circuit or become a matter of uncertainty in the Ninth Circuit. We will continue to implement these programs consistent with our treaty obligations. Sweet Home, 515 U.S. at 698 n.11 (Congress's decision to specifically define take in the ESA obviated the need to define its common-law meaning). 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. 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. I have never been able to see why you cannot hunt, whether you kill or not. The MBTA will continue to operate as Congress intended it to operate. Our interpretation of the MBTA is primarily governed by the language of the statute, its legislative history, and subsequent case law. Response: The Supreme Court's decision in Bostock is not applicable to our interpretation of the MBTA. 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. LEXIS 1110 (D.C. Cir. 2. There is simply no question that the Service's history of interpretation (until 2017) of the MBTA as applying to incidental take has been the bulwark protecting tens of millions of birds from unnecessary deaths. Rather, it should extend that comment period by 45 days or more. The Service is charged with implementing the statute as written. The Service has sought to justify the reversal on the grounds that, [w]hile the MBTA does contemplate the issuance of permits authorizing the taking of wildlife . 704(a). Thus, under common law [t]o `take,' when applied to wild animals, means to reduce those animals, by killing or capturing, to human control. Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting); see also CITGO, 801 F.3d at 489 (Justice Scalia's discussion of `take' as used in the Endangered Species Act is not challenged here by the government . Comment: The proposed rule would harm States by depriving them of the MBTA's protections for migratory birds that nest in, winter in, or pass through their territories. 3, Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 11, 2017). This PDF is The Service's selection of this alternative and the basis for that selection are provided in the Record of Decision signed by the Director of the U.S. documents in the last year, 825 The Service will continue to work with State and local governments as well as industry to implement voluntary measures to reduce impacts to migratory birds. A, Title III, Sec. 1202. 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. Trucking Ass'ns, 531 U.S. 457, 468 (2001). Tribal representatives were allowed to ask questions and seek clarifications. See id. is not required. Another example are ground cavity-nesting species, such as burrowing owl or bank swallow. Rather than strict liability, the MBTA would apply a negligence standard to hunters who used fields with loose grain. . Response: The commenter misconstrues our interpretation of the MBTA's criminal misdemeanor provision in section 6. better and aid in comparing the online edition to the print edition. This rulemaking will have no effect on those species. Providing a regulatory approach such as a permitting program or a program based upon a gross negligence approach Start Printed Page 1159would fulfill the Treaty obligations while also satisfying the intent of E.O.s 12866 and 13563. See generally CITGO, 801 F.3d at 490 (The addition of adverbial phrases connoting `means' and `manner,' however, does not serve to transform the nature of the activities themselves. For example, some Members anticipated application of the MBTA to children who act `through inadvertence' or `through accident.' Of the five referenced verbs, threepursue, hunt, and captureunambiguously require an action that is directed at migratory birds, nests, or eggs. Following Wind Energy Guidelines, which involve conducting risk assessments for siting facilities. 742, 744-45 (D. Idaho 1989) (The statute itself does not state that poisoning of migratory birds by pesticide constitutes a criminal violation. 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. In one of the comments, they referenced that the proposed rule cites 500,000 to 1,000,000 deaths per year at oil pits as old and high, suggesting that new technological innovation and State regulations have caused a decrease in oil pit mortality. Protection of Migratory Birds: Hearing on H.R. Response: The intent of this rulemaking is not to harm States, but to interpret the MBTA in the manner Congress intended when it drafted and enacted the statute. 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. This series of events would lead to further restrictions and require substantial resources to manage and ensure conservation and recovery. 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. Installation of flashing obstruction lighting. . Response: The Court's holding in Homeland Security does not apply to this rulemaking because the Service has considered the prior Departmental interpretation and agency practice in developing this rulemaking. & Constr. These three separate 45-day periods provided sufficient time for the public to address this rulemaking. 4816 (statement of Sen. Smith) (1917). Otherwise-lawful economic activity should not be functionally dependent upon the ad hoc exercise of enforcement discretion. In the Second and Tenth Circuits, the Federal Government can apply the MBTA to incidental take, albeit with differing judicial limitations. One alternative in the draft EIS covers the expected effects of reverting to the Department's prior interpretation of the statute. Response: Our interpretation of the MBTA concludes that the statute does not prohibit incidental take, including any resulting from wind-energy facilities. To wit, according to the entry for each word in a contemporary dictionary: Thus, one does not passively or accidentally pursue, hunt, or capture. 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. 541, 549 (W.D. . Moreover, the M-Opinion, which provided the original basis for this rulemaking, has been publicly available for more than 2 years. 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. This site displays a prototype of a Web 2.0 version of the daily On January 7, the Service published a final rule defining the scope of the MBTA such that an incidental bird take resulting from an otherwise lawful activity, for . "In reference to your request for documentation for the removal of an active Osprey nest from the light pole at the soccer field, please be advised that none exist. The NRDC district court predicated its broad reading of kill primarily on the notion that a narrower reading would read the term out of the Act by depriving it of independent meaning. . "The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting migratory birds and restoring declining bird populations," said Secretary Deb Haaland. Natural Res. . It is eminently foreseeable and probable that cars and windows will kill birds. 23, 2012). In its current form, section 2(a) of the MBTA provides in relevant part that, unless permitted by regulations, it is unlawful: at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof. This regulatory change is not expected to change current implementation or enforcement of the MBTA. Register, and does not replace the official print version or the official The list of birds now protected as `migratory birds' under the MBTA is a long one, including many of the most numerous and least endangered species one can imagine. Mahler, 927 F. Supp. on NARA's archives.gov. 3329; and Convention between the United States of American and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, U.S.-U.S.S.R., Nov. 19, 1976, 29 U.S.T. 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. Exceptions are allowed for hunting . . 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. 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