Neotropical Migratory Birds are defined as species whose breeding area includes the North American temperate zones and that migrate in many cases south of the continental United States during nonbreeding seasons (Hunter et al 1993). . The Service will continue to implement the full suite of regulations authorizing conduct directed at migratory birds. 20080 Before the House Comm. One Member of Congress even offered a statement that explains why the statute is not redundant in its use of the various terms to explain what activities are regulated: [T]hey cannot hunt ducks in Indiana in the fall, because they cannot kill them. Given the overwhelming evidence that the primary purpose of section 2, as amended by the Mexico Treaty Act, was to control over-hunting, the references to the later agreements do not bear the weight of the conclusion reached by the prior Opinion (M-37041). Comment: One commenter stated that as a result of the Federal Circuit Court split and dueling Solicitor's opinions, and without MBTA regulations addressing what activities are prohibited under the MBTA, the same activities that are entirely lawful in some parts of the country could give rise to strict criminal liability in parts of the country in which Federal Circuit Courts have held that unintentional take is prohibited under the MBTA. Response: We appreciate that the commenters have engaged with the Service to advance conservation efforts that protect and enhance wildlife, including migratory birds, and that commenters advocate continued use of good faith efforts to limit impacts to migratory birds. No public comments received to estimate costs. Closed loop drilling fluid systems typically used for reasons other than bird mitigation. 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. Data are unavailable regarding fleet size and how many measures are employed on each vessel. 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. . The Technicians immediately identified three mourning doves, which are protected by the Migratory Bird Treaty Act. 13132. Simply stating that the Service has used the best available science is not sufficient. . Thus, it is unclear what activities are extrahazardous. In FMC, the concept was applied to the manufacture of toxic chemicals, i.e., pesticides. Section 2 of the MBTA groups together five verbspursue, hunt, take, capture, and kill. Accordingly, the statutory construction canon of noscitur a sociis (it is known by its associates) counsels in favor of reading each verb to have a related meaning. Reading the MBTA to capture incidental takings could potentially transform average Americans into criminals. Comment: Several commenters suggested that the proposed rule paints a broad brush over incidental takes, treating all equally and absolving even grossly negligent behavior that can result in the large-scale death of birds. . 2d at 1213. 2d at 1081 (quoting 56 Cong. 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. Any attempt to permanently weaken the MBTA, which will perpetuate, and almost certainly increase, the level of injury and death of migratory birds, needs concurrence by Canada, Mexico, Japan, and Russia if our treaty obligations are to have any true meaning. 704(a). I have never been able to see why you cannot hunt, whether you kill or not. That action is directed at birds but does not take them in the common law sense that take means to reduce wildlife to human physical control, and it could also not be fairly characterized as hunting, pursuing, or capturing them either. 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. Because data are unavailable about the distribution of possible range of measures and costs, we do not extrapolate cost data to small businesses. 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. Therefore, as a matter of both law and policy, the Service adopts a regulation limiting the scope of the MBTA to actions that are directed at migratory birds, their nests, or their eggs, and clarifying that injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act. Based upon the Service's analysis of manmade threats to migratory birds and the Service's own enforcement history, common activities such as owning and operating a power line, wind farm, or drilling operation pose an inherent risk of incidental take. In addition, a variety of factors would influence whether, under the previous interpretation of the MBTA, businesses would implement such measures. at 1469 (take has many definitions, including the more passive [t]o receive into one's hold, possession, etc., by a voluntary act or the more active [t]o lay hold of, as in grasping, seizing, catching, capturing, adhering to, or the like; grasp; seize;implying or suggesting the use of physical force). Thus, limiting the range of actions prohibited by the MBTA to those that are directed at migratory birds will focus prosecutions on activities like hunting and trapping and exclude more attenuated conduct, such as lawful commercial activity, that unintentionally and indirectly results in the death of migratory birds. Comment: The Flyway Councils noted that the proposed rule was brought forth without the proper procedures as outlined by NEPA and the APA. We are . 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. Enough birds will keep every insect off of every tree in America, and if you will quit shooting them, they will do it. should verify the contents of the documents against a final, official documents in the last year, by the Federal Aviation Administration 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. has no substantive legal effect. 85 FR at 5918, February 3, 2020. Dictionary definitions of the term take at the time of MBTA enactment were consistent with this historical use in the context of hunting and capturing wildlife. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. Cost not available for wastewater systems. 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 rule of lenity requires ambiguous criminal laws to be Start Printed Page 1156interpreted in favor of the defendants subjected to them. 7455 (1918) (statement of Rep. Mondell)). E.O. Jerome Ford, Assistant Director, Migratory Birds, at 202-208-1050. There is no requirement under the APA to consider alternatives in a proposed rule. Many comments included additional attachments (e.g., scanned letters, photographs, and supporting documents). Compare Mexico Treaty Act, 49 Stat. As a biological monitor, I presented environmental trainings, conducted pre-activity surveys, conducted BMP inspections, conducted migratory bird surveys, monitored construction within critical . Based upon the text, history, and purpose of the MBTA, and consistent with decisions in the Courts of Appeals for the Fifth, Eighth, and Ninth circuits, there is an alternative interpretation that avoids these concerns. The majority of Minnesota's birds are protected by the federal Migratory Bird Treaty Act of 1918 (MBTA), which prohibits the take of birds, their nests, and/or their eggs, whether intentional or unintentional. 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. 01/05/2021 at 11:15 am. 10, 1972, 23 U.S.T. We currently authorize, and will continue to authorize, various activities that directly take migratory birds through our permit regulations at 50 CFR part 21. structure The Solicitor's interpretation marked a change from prior U.S. High variability in survey costs and high variability in need to conduct surveys. 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. . The Migratory Bird Treaty Act of 1918 (MBTA) prohibits taking, attempting to take, capturing, killing, selling/purchasing, possessing, transporting, and importing of migratory birds (including ground-nesting species), their eggs, parts and nests, except when specifically authorized by the Department of the Interior. See Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Response: The Service does not agree that the MBTA is the only mechanism to achieve bird conservation. Many other methods of hunting, capturing, pursuing, taking, or killing birds no doubt exist, and that is precisely the point. In this Issue, Documents These species are protected under the Migratory Bird Treaty Act (1918) based on their international importance. The Act establishes an infrastructure and provides a source of funding, a competitive grant program. This analysis really shows that the benefits of the proposed rule are overblown and targeted to a few companies that just do not want to be regulated. 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 proposed rule did not provide a threshold for prohibiting incidental take because it proposed to codify the interpretation set forth in M-37050 that the Act does not prohibit incidental take in the first place. The clause proposed by the commenter would be inconsistent with our interpretation of the Act and would essentially add a requirement to the MBTA. This rule may reduce the incentive for affected parties to implement these guidelines. The Migratory Bird Treaty Act is the primary legislation protecting native birds in the United States and one of this country's earliest environmental laws. That which it meant when adopted, it means now. South Carolina v. United States, 199 U.S. 437, 448 (1905). Economic effects on government entities are examined for each alternative in the RIA. The Migratory Bird Treaty Act of 1918 (MBTA), codified at 16 U.S.C. Such an interpretation could lead to absurd results, which are to be avoided. 1559 (S.D. 1202. 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. The EIS compares the environmental effects of both alternatives. The store employees had spotted birds flying around several areas, as well as a nest built right over the customer service desk. 703(a). If significant declines are noted, how will the Service respond if declines are attributed to incidental take? . Under the MBTA it is illegal to destroy a nest that has eggs or chicks in it or if there are young birds that are still dependent on the nest for survival. Response: We do not agree with the commenter's assessment of this rulemaking or that available data supports the commenter's analysis of the Service's prior interpretation. 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. However, the relevant acts prohibited by the MBTA are voluntary acts directed at killing or reducing an animal to human control, such as when a hunter shoots a protected bird causing its death. Most bird nests are protected under the Migratory Bird Treaty Act (MBTA). . . The following text presents the substantive comments we received and responses to them. 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. 2d at 1209. In rural areas, vultures have been known to predate young or vulnerable livestock, which is of great concern . 1, De Adquir. In addition, even if such a conclusion is not legally compelled, the Service proposes to adopt it as a matter of policy. Even though destruction of nest by itself is not prohibited under the MBTA, nest destruction that results in the unpermitted take ofmigratory birds, or their eggs, is illegal and fully prosecutable under the MBTA. . Comment: Multiple commenters noted that the process being used for this rulemaking is unconventional. ., which covers all stages of the process by which protected wildlife is reduced to man's dominion and made the object of profit, and, as such, is a term of art deeply embedded in the statutory and common law concerning wildlife that describes a class of acts (not omissions) done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals). Sweet Home, 515 U.S. at 718 (Scalia, J., dissenting). better and aid in comparing the online edition to the print edition. Many other factors are often at play for companies engaged in actions that may affect migratory birds, including public perception, green business credentials, economic factors, State law, and pressure from investors and lenders. Many of these commenters requested an extended comment period. at 375. Response: We agree with the comment that the language of section 2 of the MBTA pertains to conduct directed at migratory birds and not conduct that incidentally results in the death of migratory birds. Following the Wind Energy Guidelines has become industry best practice and would likely continue. In the absence of a permit issued pursuant to Departmental regulation, it is not clear that the Service has any authority under the MBTA to require minimizing or mitigating actions that balance the environmental harm from the taking of migratory birds with other societal goals, such as the production of wind or solar energy. The act included a broad range of prohibitions . 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