The commenter went on to note that there is no evidence presented as to the economic burden for implementing voluntary best management practices. Response: The purpose of this action is to provide an official regulatory definition of the scope of the statute as it relates to incidental take of migratory birds. on at 813 (kill may mean the more active to put to death; to slay or serve as the general term for depriving of life); id. This rule does not alter consultation requirements under the ESA for migratory bird species also listed as endangered or threatened species. That does not mean, however, that Congress intended for strict liability to apply to all forms of human activity, such as cutting a tree, mowing a hayfield, or flying a plane. Comment: One commenter recommended imposing stricter regulations along main migratory routes where high concentrations of MBTA species are biologically vulnerable (including stopover areas along migration routes, and core breeding/wintering areas), especially for threatened or endangered species or Species of Conservation Concern. Protect the Nest. 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. at 697, n.10. The degree to which these small business in NAICS 213111 may be impacted by the rule is variable and is dependent on location and choice. We respectfully disagree with that court's opinion and have finalized this rulemaking consistent with the Supreme Court's holding in Brand X. Federal Register issue. . See Act of June 1, 1974, Public Law 93-300, 88 Stat. by the Internal Revenue Service 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 U.S. Supreme Court has held: Under a long line of our decisions, the tie must go to the defendant. This rulemaking will not significantly affect the Service's obligations under other legal statutes that protect migratory birds. 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. This table of contents is a navigational tool, processed from the Comment: One commenter suggested amending the proposed regulatory Start Printed Page 1147language by adding: provided that the person, association, partnership, or corporation takes reasonably practicable precautionary measures to prevent the taking or killing of migratory birds. 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. The Service disagrees that this rulemaking restricts the meaning and intent of the MBTA. This PDF is 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. Thus, we disagree with the commenter's assertion that this rule restricts or alters the meaning or intent of the MBTA. .' The status of migratory bird populations in the areas described by the commenter may be relevant in our decision to permit take under the Service's current permit system. In accordance with E.O. Response: A wide array of statutory mandates provide protections to wildlife, including migratory birds. In all three categories, the Service is presently ill suited to fulfill the role envisioned by the proposed rule. Natural Res. documents in the last year, by the Animal and Plant Health Inspection Service A rulemaking cannot violate a statute or make it inoperable and must be consistent with the legislative intent of the law. We determine that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same, apply only to actions directed at migratory birds, their nests, or their eggs. 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 regulation of hunting was also legally tenuous at that time. Comment: One industry commenter claimed that an extreme application of the MBTA imposes criminal liability any time a migratory bird is killed incidental to another activity and would create an absurd and likely disastrous scenario in which the majority of Americans could be considered potential criminals. 1559 (S.D. The store employees had spotted birds flying around several areas, as well as a nest built right over the customer service desk. . As explained above and in the rationale set forth in Regulatory Planning and Review, the economic effects on most or all regulated entities will be positive and this rule is not a major rule under SBREFA (5 U.S.C. Thus, Congress spoke clearly to the matter of whether the MBTA scope includes incidental takes and kills. See id. However, if the nest is abandoned or no . See United States v. Moon Lake Electrical Ass'n, 45 F. Supp. . 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 EIS notes that it may result in a measurable increase, but we do not expect it to be substantial. See Convention between the Government of the United States and the Government of Japan for the Protection of Migratory birds and Birds in Danger of Extinction, and their Environment, 25 U.S.T. Comment: Multiple commenters recommended the Service clarify how the Service will continue to collect project-level data on industrial impacts to birds. On March 16, 2020, the Service held a webinar that was restricted in attendance to allow only Tribal members to attend, with the sole purpose of informing Tribes of the proposed action. We do not distinguish the acquisition of these wild beasts and birds by whether one has captured them on his own property [or] on the property of another; but he who wishes to enter into the property of another to hunt can be readily prevented if the owner knows his purpose to do so. 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. . However, the proposed action is based on a legal interpretation of the MBTA. As with the 1916 Canada Convention, the Mexico Convention focused primarily on hunting and establishing protections for birds in the context of take and possession for commercial use. Therefore, the State requested that the short and long-term impacts of the proposed rule change be fully and accurately evaluated in the EIS, and that there be at least a 60-day comment period after the draft EIS is published in order to facilitate a thorough public review. Response: The Service has not issued any 4(d) rules or not-warranted determinations with the understanding that MBTA protections stemming from an interpretation that it prohibits incidental take would still apply. The Supreme Court's result and reasoning are impossible to square with a central justification for the proposed rule and M-Opinion 37050 on which it is based. Implementing legislation for the treaty with the Soviet Union also did not amend section 2. The court even suggested that these statements, which anticipated application of the Start Printed Page 1138MBTA to children who act `through inadvertence' or `through accident,' supported a broader reading of the legislative history. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress's stead. United States v. Santos, 553 U.S. 507, 514 (2008) (internal citations omitted). 7446 (1918) (statement of Rep. Stevenson)). . 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. The MBTA's legislative intent is to prevent needless losses, establish closed seasons for hunting, prohibit the taking of nests or eggs of migratory game or insectivorous nongame birds except for scientific or propagating purposes, further establish longer closures for certain species, and provide for the issuance of permits to address the killing of specified birds. In accordance with E.O. 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. $7,500 per power pole with high variability of cost 1531-44), requires that The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. 16 U.S.C. It is usually required that you wait for the nest to become inactive (contains no eggs or chicks and is no longer being used by birds for breeding) before destroying it. . It is also illegal for anyone to keep a nest they take out of a tree or find on the ground unless they have a permit to do so issued by the U.S. . 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 . 315, 116 Stat. 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. Codifying our interpretation that the MBTA does not prohibit incidental take into Federal regulations would provide the public, businesses, government agencies, and other entities legal clarity and certainty regarding what is and is not prohibited under the MBTA. In accordance with the Unfunded Mandates Reform Act (2 U.S.C. The Migratory Bird Treaty Act (MBTA; 16 U.S.C. The trouble is in shooting the ducks in Louisiana, Arkansas, and Texas in the summer time, and also killing them when they are nesting up in Canada. If the purpose of the referenced activity were specifically to remove active bird nests, then that activity would still be a violation of the MBTA and a permit would be required before any removal could lawfully proceed. While the term kill can certainly be interpreted broadly in a general sense, we disagree that kill should take on its most expansive meaning in the context of section 2 of the MBTA. As the Fifth Circuit explained, [a] single carve-out from the law cannot mean that the entire coverage of the MBTA was implicitly and hugely expanded. CITGO, 801 F.3d at 491. . Collectively, the change in interpretation of these foundational laws and rules will undoubtedly remove any motivation for regulated entities to mitigate the harm caused by their actions on birds and their eggs and will increase incidental take. 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. 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. As the rest of the sentence clarifies, the hypothetical boy acted without meaning anything wrong, not that he acted unintentionally or accidentally in damaging the robin's nest. Comment: Numerous commenters requested that the Service return to the previous interpretation of the MBTA and publish a proposed rule that codifies the former interpretation that the MBTA prohibits incidental take. "Take" broadly means to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, transport." Comment: Multiple commenters suggest that the Service's choice to release a proposed rule based on a policy change it is already implementing, and conduct a NEPA analysis after-the-fact, turns NEPA on its head. Response: The Service began the NEPA process at the appropriate timewhen it first considered rulemaking regarding the interpretation of the MBTA originally set forth in M-37050. 10, 45 Stat. Interpreting the statute to reach only actions directed at migratory birds would not nullify these amendments. Response: The Service does not agree that the MBTA is the only mechanism to achieve bird conservation. Response: The rule does not attempt to parse the difference between Start Printed Page 1152deliberate and foreseeable. Those terms are not relevant to our interpretation of the MBTA. Cal. Rather, it is the only possible reading of the MBTA that accomplishes its intended purpose. These three separate 45-day periods provided sufficient time for the public to address this rulemaking. Major Federal actions include policy changes like M-Opinion 37050. The Service has completed these consultations with all interested parties. 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