The 1936 amendment modified the language to clarify its meaning and application, but there is no indication those changes were intended Start Printed Page 1143to broaden the scope of the statute beyond actions directed at migratory birds. Response: We agree with the commenter that interpreting the MBTA to prohibit incidental take could potentially lead to some of the cited absurd results. Reading the MBTA to capture incidental takings could potentially transform average Americans into criminals. Another example are ground cavity-nesting species, such as burrowing owl or bank swallow. 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 preamble to this rule explains our interpretation of the MBTA's statutory language and legislative history and why the interpretation set forth by this rule is consistent with and the best reading of that language and history. Rec. Yet, the Supreme Court has declared [i]t will not do to say that a prosecutor's sense of fairness and the Constitution would prevent a successful . 3, Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 11, 2017). However, the interpretation of the MBTA applying Start Printed Page 1154strict liability to the law's criminal misdemeanor provision covering incidental take raises no constitutional problems, nor is it contrary to the intent of Congress. We disagree with the commenter's conclusions and refer readers to our analysis in the preamble. For complete information about, and access to, our official publications 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. The Service will continue to work to develop partnerships with industry sectors to monitor incidental mortality and the stressors causing this mortality, as well as to develop voluntary best practices that industry sectors can implement when they seek to reduce their project-level impacts on the environment. The commenters claimed that the rule communicates that for even the most egregious and demonstrably deliberate violations, violators' real-world liability will still be limited by Service funding, investigatory resources and expertise, and political will with respect to enforcement. The Service has sought to involve and consult with Tribes regarding this rulemaking. 1978); United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 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. Within 48 hours, or as soon as possible, provide NRM with an initial assessment of the situation. (1) You may humanely remove a trapped migratory bird from the interior of a residence or a commercial or government building without a Federal permit if the migratory bird: (i) Poses a health threat (for example, through damage to foodstuffs); Nest removal permits are usually only issued when the particular nest is causing a human health or safety concern or the birds are in immediate danger. 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. This confused order of events also hampers a fair public understanding of the agency's proposed action, alternatives, and likely impacts. Response: The Service has complied with the procedural requirements of NEPA for developing an EIS by publishing a scoping notice and a draft EIS inviting public comment before developing a final EIS and record of decision. Comment: One commenter noted that the recent Supreme Court ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), does not support this rulemaking. Our interpretation of the MBTA is primarily governed by the language of the statute, its legislative history, and subsequent case law. was enacted in 1918 to help fulfill the United States' obligations under the 1916 "Convention between the United States and Great Britain for the protection of Migratory Birds." 39 Stat. . Without a Federal mechanism for incorporating consideration of incidental take of migratory birds into decision-making, it will be much more difficult to make informed decisions that benefit bird populations. We refer the commenter to the EIS for analysis and discussion of the environmental impacts of the proposal and reasonable alternatives. 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. Response: The language cited by the commenter simply refers to the language of the MBTA and asserts that it is a strict-liability statute. While it is illegal to collect, possess, or by any means transfer possession of migratory bird nests, the MBTA does not contain any prohibition that applies to the destruction of a bird nest alone (without eggs or birds in it), provided that no possession occurs during destruction. These tools are designed to help you understand the official document Comment: A commenter stated that the proposed rule will result in a dangerous slippery slope, making intent difficult to prove because if there is no regulation for unintentional take, then anything could be classified as incidental take. The proposed rule change puts the burden of proof on the Service of determining intent, which can be difficult or impossible to truly establish. The court in Moon Lake identified an important and inherent limiting feature of the MBTA's misdemeanor provision: To obtain a guilty verdict . Federal Register issue. 2d at 1209. was enacted in 1918 to help fulfill the United States' obligations under the 1916 Convention between the United States and Great Britain for the protection of Migratory Birds. 39 Stat. Response: Best management practices (BMPs) have never been required under the MBTA, other than as part of our occasional application of the special purpose permit provision to authorize Start Printed Page 1148incidental take under certain circumstances, as there has never been a specific permit provision for authorizing incidental take that would require their implementation. Furthermore, the average number of oil pits per business is unknown. The statutory context of the MBTA would make little sense if it merely prohibited directed action such as hunting because its purpose extends beyond conserving game birds. Jerome Ford, Assistant Director, Migratory Birds, at 202-208-1050. Dom.). Thus, [a] conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained `fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.' Within the EIS, the Service analyzed impacts of the no action alternative and two additional alternatives on (1) The overall effect of each alternative on migratory bird populations, (2) the effect of any decrease in migratory bird populations on ecosystem services, (3) the potential effects of climate change in combination of each alternative, and (4) the impacts to industry and small business that may profit from migratory birds. The Service has provided a Regulatory Impact Analysis with the proposed rule, which provides a cost-benefit analysis of the rule along with reasonable alternatives, to comply with Executive Order 12866 and certifies that the rule will not have a significant economic impact on a substantial number of small entities to comply with the Regulatory Flexibility Act. Regarding the future listing of migratory birds as threatened species, as stated in the final rule rescinding the blanket rules for threatened species (84 FR 44753, August 27, 2019) and restated here, our intention is to finalize species-specific section 4(d) rules concurrently with final listing or reclassification determinations. However, this rulemaking is not expected to affect significantly those continuing declines. One alternative in the draft EIS covers the expected effects of reverting to the Department's prior interpretation of the statute. Nevertheless, the proposed rule attempts to parse the difference between definitions of the terms deliberate and foreseeable. Regardless of the scale and scope of destruction, the rule proposes to make deliberateness in the form of passive negligence consequence-free. 3(h), 92 Stat. at 697, n.10. We will continue to cooperate with States that request our assistance in developing best management practices for various industries that minimize incidental take of migratory birds. The list of applicable migratory birds protected by the MBTA is currently codified in title 50 of the Code of Federal Regulations at 50 CFR 10.13. Executive Order (E.O.) 04/17/2023, 36 1702. 1997) (MBTA's plain language prohibits conduct directed at migratory birds. at 1581 (Many other statutes enacted in the intervening years also counsel against reading the MBTA to prohibit any and all migratory bird deaths resulting from logging activities in national forests. However, Federal courts are obliged to defer to an agency's reasonable interpretation of ambiguous statutory language if that interpretation is codified in a regulation that undergoes public notice and comment under the Administrative Procedure Act. Thus, in our view, the M-Opinion was neither final agency action nor major Federal action. The opposite would seem to be true. Likewise, Blackstone's Commentaries provide: A man may lastly have a qualified property in animals feroe naturoe, propter privilegium, that is, he may have the privilege of hunting, taking and killing them in exclusion of other persons. It is not required for projects to submit data on incidental take; however, we encourage proponents voluntarily to submit these data so that we are able to track bird mortality. To wit, the guidelines themselves state, it is not possible to absolve individuals or companies from liability under the MBTA. 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. By contrast, Courts of Appeals in the Fifth, Eighth, and Ninth Circuits, as well as district courts in the Third and Seventh Circuits, have indicated that it does not. Comment: A comment stated that an agency charged with administering a statute cannot restrict, amend, repeal or expand it without congressional approval. These cases are also inapposite because they do not interpret the term kill in relation to adjacent, related terms that could be read to limit effectively the scope of kill in its general sense. As the Supreme Court has instructed, absent contrary indications, Congress intends to adopt the common law definition of statutory terms. United States v. Shabani, 513 U.S. 10, 13 (1994). Comment: The analysis under the Regulatory Flexibility Act shows likely minimal economic benefit to all of the affected businesses. 65-243, at 2 (1918) (letter from Secretary of State Robert Lansing to the President)). Comment: Multiple commenters were concerned about the unorthodox approach of simultaneously publishing a draft rule and a NEPA scoping announcement and seeking comments on both at the same time. 252 U.S. 416, 432-33 (1920). Nor do the owners of electrical lines `take' migratory birds who run into them. Under the Migratory Bird Treaty Act (MBTA) (16 U.S.C. Document Drafting Handbook 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. This analysis first estimates the number of businesses impacted and then estimates the economic impact of the rule. . Comment: Multiple commenters noted that the effects of this rule on ESA-listed species must be seriously scrutinized in an EIS as well as in section 7 consultation under the ESA. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. Of the five referenced verbs, threepursue, hunt, and captureunambiguously require an action that is directed at migratory birds, nests, or eggs. The text, history, and purpose of the MBTA demonstrate instead that it is a law limited in relevant part to actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs to human control by killing or capturing. 99-445, at 16 (1986), reprinted in 1986 U.S.C.C.A.N. There are also State and local laws that would prevent the unnecessary killing of birds. This difference is underscored by the recent Federal district court decision vacating the M-Opinion. 55 Cong. . . 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. An expansive reading of the MBTA that includes an incidental-take prohibition would subject those who engage in these common, and necessary, activities to criminal liability. This rulemaking will not affect those investigations. Testimony concerning the MBTA given by the Solicitor's Office for the Department of Agriculture underscores this focus: We people down here hunt [migratory birds]. The Executive Order further states without any uncertainty that the MBTA and its implementing regulations apply to both intentional and unintentional takings of migratory birds. 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.