establishing the XML-based Federal Register as an ACFR-sanctioned 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. at 1754. These treaties established the Federal Government's trust responsibility to Federally Recognized Tribes. A takings implication assessment is not required. M-37050 concluded that the MBTA does not prohibit incidental take. Because the proposed alternative would have established a minimum mens rea of gross negligence before the Service could enforce the statute's misdemeanor provision, it would not be legally defensible. 04/17/2023, 36 Comment: One commenter stated that this rule represents a fundamental abdication of the Service's mission to protect native wild birds. 1996); Curry v. U.S. Forest Serv., 988 F. Supp. Ind. The Service must consider how its proposed interpretation is consistent with that diplomatic exchange and seek Canada's views on the Service's new interpretation in light of that exchange. Add 10.14 to subpart B to read as follows: The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. The most effective way to reduce uncertainty and have a truly national standard is for the Service to codify and apply a uniform interpretation of the MBTA that its prohibitions do not apply to incidental take, based upon the Fifth Circuit's ruling in CITGO Petroleum Corporation. The relevant portion of the MBTA reads, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . The majority of these birds are federally protected under the Migratory Bird Treaty Act, which protects the birds, their nests, eggs, and feathers. To be sure, Congress may draft statutory language to include potential future concerns not readily predicted at the time of enactment, but there is no indication that Congress intended the language of section 2 to encompass accidental or incidental deaths of migratory birds. 01/05/2021 at 11:15 am. Annual nationwide non-labor cost to implement wind energy guidelines: $36.9M. However, there needs to be language that allows for the prosecution of individuals who are grossly negligent. Although longline fishing is regulated under the Magnuson-Stevens Act, seabirds are not afforded protection as they do not fall under that statute's definition of bycatch. Comment: One commenter stated that the proposed rule does not address the Service's statutory authority to change the interpretation of the MBTA. $4,000 initial and $50 annual for side setting. 2d 353 (2020), similarly does not support moving forward with this rulemaking. Cats, which kill an estimated 2.4 billion birds per year; Collisions with building glass, which kill an estimated 599 million birds per year; Collisions with vehicles, which kill an estimated 214.5 million birds per year; Collisions with electrical lines, which kill an estimated 25.5 million birds per year; Collisions with communications towers, which kill an estimated 6.6 million birds per year; Electrocutions, which kill an estimated 5.6 million birds per year; Oil pits, which kill an estimated 750 thousand birds per year; and. . Response: This rulemaking has no effect on investigations into conduct directed at migratory birds or the MBTA's criminal felony and baiting provisions that require a specific mental state. 701-715) and section 8A(e) of the Endangered Species . 703) that make it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill migratory birds, or attempt to engage in any of those actions, apply only to actions directed at migratory birds, their nests, or their eggs. Because no take has occurred within the meaning of the MBTA, the strict-liability provisions of the Act would not be triggered. documents in the last year, 493 This failure to address threats beyond harvesting undermines the United States' commitment under the amended Canada treaty to ensure the long-term conservation of shared migratory bird species. 04/17/2023, 273 The replacement timeline for netting is also variable because hurricanes, strong winds, and strong sun all have deleterious impacts on nets. 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. The terms take and kill are informed by the context of the rest of the statute in which they must be read, and by the legislative and historical record of the MBTA and other environmental laws. 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. The Service drafted the proposed rule with sufficient flexibility to incorporate the alternatives analyzed in the draft EIS. 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. 1222, 1224 (1929) (codified as amended at 16 U.S.C. like what a tree nesting species might build. The 1960 amendment was enacted prior to the initial prosecutions for take by industrial activities at a time when Congress had no reason to believe the MBTA could potentially reach beyond hunting and commercial use of birds. Response: The proposed rule does not alter the burden of proof for intentional take under the MBTA. The Department of Justice filed a notice of appeal on October 8, 2020. It can be difficult to detect whether birds or viable eggs are in a cavity. documents in the last year, 299 at 1745. Under the facts of this case, the MBTA does not give `fair notice as to what constitutes illegal conduct' so that [the farmer] could `conform his conduct to the requirements of the law.' Many of the companies and projects that face potential liability under the MBTA operate across boundary lines for judicial circuits. It is also noteworthy that those losses occurred despite the Department's prior interpretation of the MBTA as prohibiting 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 . Register documents. Within 48 hours, or as soon as possible, provide NRM with an initial assessment of the situation. Learn about best management practices to protect birds and their nests when working on City projects. 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. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. The commenter noted that many stakeholders are engaged in identifying common-sense mitigation measures to minimize remaining impacts from the construction and operation of wind-energy facilities. 2021-00054 Filed 1-5-21; 11:15 am], updated on 4:15 PM on Monday, April 17, 2023, updated on 8:45 AM on Monday, April 17, 2023, 104 documents But the court was silent as to how far this rule extends, even in the relatively narrow context of pesticides. Further, as a practical matter, inconsistency and uncertainty are built into the MBTA enforcement regime by virtue of a split between Federal Circuit Courts of Appeals. . It should not be viewed as standing in the way of the successful actions the commenter notes. documents in the last year, 124 For example, colonial nesting birds are highly sensitive to disturbance; destruction of their nests during or near the nesting season could result in a significant level of take. 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.). See Bob Stump National Defense Authorization Act for Fiscal Year 2003, Public Law 107-314, Div. 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. 7446 (1918) (statement of Rep. Stevenson)). This rule may reduce the incentive for affected parties to implement these guidelines. Response: The language cited by the commenter simply refers to the language of the MBTA and asserts that it is a strict-liability statute. Register, and does not replace the official print version or the official 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 conclusion that the taking and killing of migratory birds is a strict-liability crime does not answer the separate question of what acts are criminalized under the statute. The commenter recommends the Service review its own web pages and the scientific literature to show that incidental take of birds is a significant problem. To avoid these absurd results, the government has historically relied on prosecutorial discretion. 804(2)). Thus, for an initial/final regulatory flexibility analysis to be required, impacts must exceed a threshold for significant impact and a threshold for a substantial number of small entities. See 5 U.S.C. Comment: One commenter stated that the proposed rule is not consistent with section 2(a) of the Migratory Bird Treaty Act, which states that it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill . Whether the Federal Government had any authority to regulate the killing or taking of any wild animal was an open question in 1918. An agency has no authority to remove statutory protections without congressional approval. 237). Tour routes of great scenic drives on National Wildlife Refuges. This also includes the . Congress specifically demonstrated its familiarity with the development of take liability in 1998 when it tackled the unfairness of strict liability in baiting cases. See Scalia & Garner at 195 (The canon especially holds that `words grouped in a list should be given related meanings. Response: The language proposed by the commenter is not consistent with our interpretation of the MBTA. 3329 (Mar. This document has been published in the Federal Register. , the government must prove proximate causation. Moon Lake, 45 F. Supp. . Electric Power Distribution (NAICS 221122), Wireless Telecommunications Carriers (except Satellite) (NAICS 517312), Extinguish non-flashing lights on towers taller than 350 Retrofit towers shorter than 350 with LED flashing lights, Industry saves hundreds of dollars per year in electricity costs by extinguishing lights Retrofitting with LED lights requires initial cost outlay, which is recouped over time due to lower energy costs and reduced maintenance. Fish and Wildlife Service (we, the Service, or USFWS), published a final rule (January 7 rule) defining the scope of the Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA. The EIS compares the environmental effects of both alternatives. . As the U.S. Supreme Court recognized 100 years ago, State-level protections are insufficient to protect transient species that travel outside of a State's territorial bounds. Comment: The Flyway Councils noted that the proposed rule was brought forth without the proper procedures as outlined by NEPA and the APA. Size distribution of oil pits is unknown. 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. Something temporarily or permanently constructed, built, or placed; and constructed of natural or manufactured parts including, but not limited to, a building, shed, cabin, porch, bridge, walkway, stair steps, sign, landing, platform, dock, rack, fence, telecommunication device, antennae, fish cleaning table, satellite dish/mount, or well head. 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. Enforcement actions have been few since the 2017 M-Opinion, so it would be speculative to assert that this change in policy will result in further significant population declines. The subsequent amendments have instead fine-tuned the mens rea required for violations directed at migratory birds, including commercial use, hunting, and baiting. The commenter stated that the Department and the Service misinterprets the Fifth Circuit's narrow decision in CITGO, 801 F.3d 477 (5th Cir. Comment: One commenter stated that it is notable that no additional alternatives were in the proposed rule. Congress used the operative language to ensure that any method employed could amount to a violation of the MBTA, so long as it involves one of the enumerated prohibited actions and is directed at migratory birds. Response: This rule would not violate any laws or executive branch policy regarding unfunded mandates. 703 et seq. informational resource until the Administrative Committee of the Federal 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. Response: A wide array of statutory mandates provide protections to wildlife, including migratory birds. headings within the legal text of Federal Register documents. Whether Congress deliberately avoided more broadly changing the MBTA or simply chose to Start Printed Page 1140address a discrete problem, the most that can be said is that Congress did no more than the plain text of the amendment means. Id. In reaching this result, the Court squarely rejected the argument that the Court's reading of the statute's expansive terms ignore[d] the legislature's purpose in enacting Title VII and that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. Id. The fact that no permit program has ever existed for incidental take demonstrates established precedent. 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. 2d 1070, 1075-76 (D. Colo. 1999) (suggesting that the Ninth Circuit's ruling in Seattle Audubon may be limited to habitat modification or destruction). Fish and Wildlife Service. The commenter stated that this ruling and analysis further undermine the Service's justification for reversing course on many decades of prior policy and practice in implementing the MBTA. Economic effects on government entities are examined for each alternative in the RIA. The Service has conducted a cost-benefit analysis which can be viewed online at https://beta.regulations.gov/docket/FWS-HQ-MB-2018-0090/document and https://www.fws.gov/regulations/mbta/. . There is no requirement under the Administrative Procedure Act (APA) to consider alternatives in the proposed rule itself (Executive Order 12866 requires consideration of alternatives that would have less economic impact on regulated entities for economically significant rulemakings, as set forth in the regulatory impact analysis made available for review with the proposed rule). Response: The Service acknowledges that birds are currently in decline. The rule also presents a false choice between regulatory certainty and implementing the MBTA. To a certain extent, some degree of short-term uncertainty is to be expected when a change in agency practice occurs. 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. The Department's Principal Deputy Solicitor, exercising the authority of the Solicitor pursuant to Secretary's Order 3345, determined in M-37050 that the statute as written does not prohibit incidental take. While unregulated harvesting is no longer a primary threat to migratory birds, declines in bird populations continue to remain a serious international issue. In addition, the industry uses these guidelines to aid in reducing effects on other regulated species like eagles and threatened and endangered bats. The Service is committed to working with those that voluntarily seek to reduce their project-related impacts to migratory birds. properly can be left to the sound discretion of prosecutors and the courts). 78 FR 65,844, 65,845 (Nov. 1, 2013); see also 50 CFR 10.13 (list of protected migratory birds); Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 FR 30032, 30033 (May 26, 2015) (Of the 1,027 currently protected species, approximately 8% are either listed (in whole or in part) as threatened or endangered under the Endangered Species Act (ESA) (16 U.S.C. 1991); Mahler v. U.S. Forest Serv., 927 F. Supp. Vegetation removal may occur if the area has been surveyed within 10 (ten) days prior to removal as long as only inactive bird nests, if any are . 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. Destruction of these nests requires a permit at all times, whether or not they are occupied and in-use. at 1576. The Public Inspection page may also Any impacts to migratory birds that we share with Canada are also discussed in the EIS. 7455 (1918) (statement of Rep. Mondell)). The operative verbs (pursue, hunt, take, capture, kill) are all affirmative acts . In making this change, the Senate Report noted that the amendment was not intended in any way to reflect upon the general application of strict liability under the MBTA.. Further, the subsequent publication and comment period on the draft EIS was after-the-fact, indicating a decision was already made regardless of the environmental consequences determined in the EIS. Following the Wind Energy Guidelines has become industry best practice and would likely continue. 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. Rec. 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. When a Secretary of Agriculture does a thing of that kind I have no hesitancy in saying that he is doing a thing that is utterly indefensible, and that the Secretary of Agriculture who does it ought to be driven from office. This rulemaking will not disturb that case law or change our enforcement of the statute in that context. The Service will continue to implement the full suite of regulations authorizing conduct directed at migratory birds. E.O. Response: The operative language originally enacted in section 2 of the MBTA has not substantively changed since 1936. Response: We agree with the commenter that interpreting the MBTA to prohibit incidental take could potentially lead to some of the cited absurd results. Comment: Contrary to the Service's position, the proposed definition of incidental take would not improve the implementation of the MBTA. ; see also Convention between the United States and Great Britain for the Protection of Migratory Birds, U.S.-Gr. The prior Solicitor's Opinion, M-37041, took a different tack from the NRDC court and assumed that because the criminal misdemeanor provision of the MBTA is a strict-liability crime, meaning that no mens rea or criminal intent is required for a violation to have taken place, any act that takes or kills a bird must be covered as long as the act Start Printed Page 1137results in the death of a bird. Comment: One commenter suggested that in some cases incidental take by industry should be considered purposeful since some of this mortality is well studied, predictable, and there are easy low-cost mitigation options available to reduce these takes. We refer the commenter to the EIS for analysis and discussion of the environmental impacts of the proposal and reasonable alternatives. 2d 161 (D.D.C. These potentially absurd results are not ameliorated by limiting the definition of incidental take to direct and foreseeable harm as some courts have suggested. Some States may have regulations that require monitoring bird use and mortality at facilities; however, the number of States with regulations is unknown. b. legal research should verify their results against an official edition of
Army Regulation Speeding Ticket,
1201 Elm Street, 21st Floor, Suite 2100a, Dallas, Tx 75270,
Heartgard And Nexgard Rebate,
Carronade Cannon For Sale,
Articles M