An agency has no authority to remove statutory protections without congressional approval. Often, monitoring of industrial projects is not conducted, and when it is, the Service rarely gets reports of the findings. The authority citation for part 10 continues to read as follows: Authority: Response: This rulemaking codifies our interpretation of the MBTA as prohibiting only conduct directed at migratory birds. The store employees had spotted birds flying around several areas, as well as a nest built right over the customer service desk. documents in the last year, by the Centers for Medicare & Medicaid Services If promulgated, the rule would force Service employees to act as private detectives with the nearly (and from all appearances, deliberately) impossible task of proving what was in the hearts and minds of violators. Comment: Some commenters noted that the prosecution of individual citizens or companies for the incidental take of migratory birds does not benefit conservation efforts. In rural areas, vultures have been known to predate young or vulnerable livestock, which is of great concern . . rendition of the daily Federal Register on FederalRegister.gov does not Finalizing a species-specific 4(d) rule concurrent with a listing or reclassification determination ensures that the species receives appropriate protections at the time it is added to the list as a threatened species. We decline to adopt that proposal for the same reasons we rejected application of a gross-negligence standard. E.O. This environmental review should focus on the biological impacts and benefits to birds of the proposed rule and any authorization program that the Service is considering. Further, it will discourage actors who fail to avoid, minimize, or mitigate for the impacts of their activities from gaming the system and taking advantage of the Service's limited prosecutorial resources. . We disagree with the commenter's interpretation of the MBTA and our nondiscretionary and discretionary duties to implement the MBTA. Comment: One commenter recommended that the Service prohibit incidental take that results from an extra-hazardous activity. 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. We do not rely on an argument that section 2's application to incidental take would demonstrate ambiguity simply because Congress could not have foreseen that application in 1918. 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. The commenters suggested that, without any legal obligations, industries no longer need to consider how their activities may harm migratory birds or take action to prevent any harm. The announcement of the proposed rule was primarily a notification to the public and the media summarizing the contents of the proposed rule and its availability for public comment, with the viewpoints of several stakeholders included. 804(2)). at 745 (dismissing charges against a farmer who applied pesticides to his fields that killed a flock of geese, reasoning [f]armers have a right to know what conduct of theirs is criminal, especially where that conduct consists of common farming practices carried on for many years in the community. According to the Service, this absence of regulations designed to address incidental take, and the reliance instead on discretionary enforcement, has resulted in regulatory uncertainty and inconsistency, thus necessitating a truly national standard and a uniform approach to implementation of the MBTA. Since its intent has not been amended by an act of Congress, the agency charged by Congress with its administration does not have the authority to restrict its meaning and intent. documents in the last year, 28 For this reason, we cannot introduce a mental-state requirement such as negligence to the MBTA's misdemeanor provision. Document page views are updated periodically throughout the day and are cumulative counts for this document. 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. 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. Installation of flashing obstruction lighting. 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. Birds have economic and ecosystem services value, and, if birds continue to decline, the economy and ecosystems will be compromised. E.O. the material on FederalRegister.gov is accurately displayed, consistent with 237). 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. See United States v. Brigham Oil & Gas, L.P., 840 F. Supp. Response: The procedures followed in this rulemaking process were appropriate and lawful. High variability in cost and need to retrofit power poles. It also fails the intent of the treaties. 55 Cong. 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. Register, and does not replace the official print version or the official The commenters noted that there is currently a patchwork of legal standards that protect migratory birds in each of the States. xMigratory Bird Treaty Act of 1918 (16 U.S.C. Section 3 proposes to turn these powers over to the Secretary of Agriculture. The MBTA will continue to operate as Congress intended it to operate. Some States may have regulations that require monitoring bird use and mortality at facilities; however, the number of States with regulations is unknown. Response: An analysis of reasonable alternatives to a proposed action is a requirement of the NEPA process. documents in the last year, by the Animal and Plant Health Inspection Service Another example are ground cavity-nesting species, such as burrowing owl or bank swallow. In fact, such partnerships will likely become increasingly important to promote conservation of migratory birds and lead to greater consistency in both conservation and regulation nationwide. on NARA's archives.gov. This analysis examines the potential effect of the rule on small businesses in selected industries. 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. Comment: Multiple commenters opposed the proposed rule because it removes the MBTA as the only mechanism that the Service can apply to require actions that avoid or minimize incidental take that is otherwise preventable. 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. The Service determines the relevant language in section 2 to be ambiguous, which is consistent with the views of most Federal courts. Because data are unavailable about the distribution of possible range of measures and costs, we do not extrapolate cost data to small businesses. Since the Small Business Size Standard is less than 1,250 employees, we assume all businesses are small. However, the Service continues to work with the bird conservation community to identify, support, and implement bird-monitoring programs. We will continue to work with our domestic and international partners, the regulated community, and the public at large to uphold our commitment to ensure the long-term conservation of migratory birds under the migratory bird Conventions. The preamble to the proposed rule and this final rule provides a detailed analysis of the language of the statute and why the scope of the MBTA does not include incidental take, including the best reading of the ambiguous terms take and kill. We refer the commenter to that analysis, which provides the basis for issuing this regulation. We decline to adopt this proposal for the same reasons we rejected application of a gross-negligence standard. Contrary to the suggestion of the courts in Moon Lake and Apollo Energies that principles of proximate causation can be read into the statute to define and limit the scope of incidental take, the death of birds as a result of activities such as driving, flying, or maintaining buildings with large windows is a direct, reasonably anticipated, and probable consequence of those actions. 703-712 (although 709 is omitted), is a United States federal law, first enacted in 1918 to implement the convention for the protection of migratory birds between the United States and Canada. Many of these commenters requested an extended comment period. At the very least, the Department should not be providing the minimum comment period. Collisions with wind turbines, which kill an estimated 234 thousand birds per year. 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. Nine Tribes requested government-to-Start Printed Page 1153government consultation. . Adopting the prior interpretation through regulation would not provide any more long-term certainty in this regard. Other factors entities consider include public perception, status as a green company, size of company, cost of implementation, perceived risk of killing migratory birds, or availability of standard industry practices. Such small entities would benefit from this rule because it would remove uncertainty about the potential impacts of proposed projects. For complete information about, and access to, our official publications Comment: One commenter stated that in an international forum the United States agreed that the MBTA is a strict-liability statute covering incidental take. The Tribes recommended that the rulemaking process be paused so that intelligent and respectful consultation with any Tribe that expresses interest in response to the invitation to consult can proceed. 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. We do not understand the point of the commenter's statement that the absence of a prior permit program established precedent on whether or not the MBTA prohibits incidental take. This rulemaking should increase that cooperation and coordination by removing the specter of a potential criminal prosecution, which has often acted as a deterrent for private parties to share information with the Service on their impact on migratory birds and work with the Service on conserving migratory bird species. While the MBTA does contemplate the issuance of permits authorizing the taking of wildlife, it requires such permits to be issued by regulation. See 16 U.S.C. 2012). 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. Subscribe now. This rule does not alter consultation requirements under the ESA for migratory bird species also listed as endangered or threatened species. . The meaning of written instruments does not alter. Whether other statutes provide protection to migratory birds is not directly relevant to codifying our current interpretation. Average number of pits per business is unknown. Dom.). 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. What are you going to do in a case like this: A barefoot boy, as barefoot boys sometimes do, largely through inadvertence and without meaning anything wrong, happens to throw a stone at and strikes and injures a robin's nest and breaks one of the eggs, whereupon he is hauled before a court for violation of a solemn treaty entered into between the United States of America and the Provinces of Canada. documents in the last year, 299 1914); United States v. McCullagh, 221 F. 288 (D. Kan. 1915). An activity that causes incidental take will never be directed at migratory birds regardless of the actor's knowledge of the potential consequences. The term extrahazardous activities is not found anywhere in the statute and is not defined by either the court or the Service. See Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). The commenter contended that entities that choose not to implement known measures are purposefully taking migratory birds. If anything, this finding argues that the proposed rule is a solution in search of a problem. This rulemaking may violate federalism rules, as States will be required to use their budgets to implement migratory bird protection actions, including regulation development and permit systems. Comment: A few commenters stated that the Department of the Interior's reinterpretation of the MBTA removed a broad layer of protection to birds against industrial harms and requested that the Service explain in the preamble how such action compounds or alleviates the findings of certain reports and other available science and biological dataincluding but not limited to data from Partners in Flight, the State of the Birds report, Christmas Bird Counts, Breeding Bird Surveys, and project-level nesting and demographic information that the Service has on file. First and foremost, when any words are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar. Antonin Scalia & Bryan A. Garner, Reading the Law: The interpretation of Legal Texts, 195 (2012); see also Third Nat'l Bank v. Impac, Ltd., 432 U.S. 312, 321 (1977) (As always, `[t]he meaning of particular phrases must be determined in context' . Only Congress can enact or amend statutory language. establishing the XML-based Federal Register as an ACFR-sanctioned 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. Thus, it removes what had been a Federal requirement for States to avoid engaging in or authorizing activities that incidentally take migratory birds. 703 mean `physical conduct of the sort engaged in by hunters and poachers. Only Congress can amend statutory language. Accordingly, an interpretation with broad implications for the American public was implicitly adopted without public debate. Under the trust responsibility, the United States is legally responsible for the protection of Tribal lands, assets, resources, and treaty rights for the benefit of Tribes. at 697, n.10. This rulemaking will not affect those investigations. This rule would not significantly or uniquely affect small government activities. from 35 agencies. However, it would also turn many Americans into potential criminals. This action is necessary to improve consistency in enforcement of the MBTA's prohibitions across the country and inform the public, businesses, government agencies, and other entities what is and is not prohibited under the MBTA. 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. 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