This rule will not create substantial direct effects or compliance costs on State and local governments or preempt State law. As described in the preamble to this rulemaking, the Service continues to view the misdemeanor provision as a strict-liability crime consistent with the majority of Federal courts that have ruled on the issue. 99-445, at 16 (1986), reprinted in 1986 U.S.C.C.A.N. documents in the last year, 825 See Act of June 1, 1974, Public Law 93-300, 88 Stat. Accordingly, the Service initiated government-to-government consultation via letters signed by Regional Directors and completed the consultations before issuing this final rule. 1577-78 (listing a litany of scenarios where normal everyday actions could potentially and incidentally lead to the death of a single bird or breaking of an egg in a nest)). Another example are ground cavity-nesting species, such as burrowing owl or bank swallow. For the selected industries, we do not provide further analysis because minimal effects are expected on small businesses relative to an environmental baseline based on current regulations and voluntary conservation measures, due to the fact that mitigation costs are small relative to the cost of projects (see Table 7). 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. Species protected are listed in 50 C.F.R. A draft EIS, issued subsequent to the proposed rule on June 5, 2020, analyzed various alternatives, some of which were discussed in the public webinars conducted as part of the NEPA scoping process. Comment: Multiple commenters noted that the codification of the Solicitor's M-Opinion 37050 is premature as it has not been fully vetted or withstood legal challenges. Comment: The Service must reconcile how this action aligns with other legal statutes that protect birds and demonstrate how the rule aligns with other statutory obligations such as the Fish and Wildlife Conservation Act, which obligates monitoring for bird populations. Over 100 years of case law and amendments to the statute have provided extensive guidance on the requirements to prove intent under the criminal provisions of the MBTA. 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. In addition to the individual comments received, 10 organizations submitted attachments representing individuals' comments, form letters, and signatories to petition-like letters representing almost 180,000 signers. . This series of events would lead to further restrictions and require substantial resources to manage and ensure conservation and recovery. On December 22, 2017, the Principal Deputy Solicitor of the Department of the Interior, exercising the authority of the Solicitor pursuant to Secretary's Order 3345, issued a legal opinion, M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take (M-37050 or M-Opinion). Under the proposed rule, the Service will continue to work with and encourage the voluntary implementation of BMPs when the entity seeks to reduce their project-related impacts. 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. Table 2 shows the distribution of businesses by employment size and average annual payroll. Vultures are protected under the Migratory Bird Treaty Act, which prohibits the killing, possession, import, export, sale or purchase of any migratory bird or its parts. For example, the Service is working proactively with both the communication tower industry and with Federal agencies, cities, and other municipalities to address tower and glass collisions. 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. The commenter's assertion would be better applied to the Service's prior exercise of enforcement discretion under the former interpretation, which left many regulated entities uncertain whether their conduct violated the MBTA and would be investigated by the Service. The commenter notes that enforcement of the MBTA under such an extreme interpretation would have devastating consequences for American businesses and communities, particularly in rural communities in close proximity to migratory bird habitat. The States voiced concerns that this rule would increase their species-management burden substantially as further declines in migratory bird populations could result in additional management requirements and protections for declining species, including additional listings under State endangered species protection laws implemented by State fish and wildlife agencies. We are codifying that interpretation in this rulemaking. Unfunded mandates occur when Congress enacts Federal law that includes directives that must be carried out by States and does not also provide funding for the States to fulfill those Federal requirements. on 3, Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 11, 2017). at 1745. [I]nadvertence in this statement refers to the boy's mens rea. Comment: Multiple commenters recommended the Service clarify how the Service will continue to collect project-level data on industrial impacts to birds. The prior M-Opinion posited that amendments to the MBTA imposing mental state requirements for specific offenses were only necessary if no mental state is otherwise required. See Geer v. Connecticut, 161 U.S. 519 (1896). The Court held that when an agency rescinds a prior policy its reasoned analysis must consider the `alternative[s]' that are `within the ambit of the existing [policy].' Comment: Multiple commenters noted that NEPA requires that decisions be analyzed in a public process before an agency irretrievably commits its resources. The Public Inspection page The scope of prohibited conduct covers actions, which require intentpursue, hunt, and capture are all actions directed at wildlife and cannot be performed by accident. Thus, the Service has analyzed the environmental impacts of adopting either opposing interpretation of the MBTA. Response: We refer the commenter to the EIS and the regulatory impact analysis for our conclusions regarding the environmental and economic impacts of this rulemaking and its reasonable alternatives on migratory birds and regulated entities. Response: Our interpretation of the MBTA concludes that the statute does not prohibit incidental take, including any resulting from wind-energy facilities. He noted that a statute's application may reach `beyond the principle evil' legislators may have intended or expected to address, Bostock, 140 S. Ct. 1731, 1749, but only where no ambiguity exists in the broadness of that statutory language. Others may continue to employ these measures voluntarily for various reasons or to comply with other Federal, State, and local laws and regulations. 315, 116 Stat. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). One of the most important ways to minimize avian impacts from wind-energy development and make it bird-friendly is to site projects properly and implement measures to avoid impacts. Response: An analysis of reasonable alternatives to a proposed action is a requirement of the NEPA process. 13186 was not designed to implement the MBTA per se, but rather was intended to govern Federal efforts to conserve migratory birds more broadly. 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. Removal of inactive nests is allowed in most locations without the need for a permit. The commenter went on to note that there is no evidence presented as to the economic burden for implementing voluntary best management practices. . Id. . the state without cooperative management or removal of . Comment: Some commenters suggested that the interpretation of the MBTA set forth in the proposed rule is flawed and does not account for the mission of the Department and the Service. Given the uncertain future of M-Opinion 37050 and accompanying legal vulnerability of the proposed rule, it would be prudent for the Service to put the proposed rulemaking on hold until the courts have determined whether the M-Opinion on which it is based withstands legal scrutiny. Response: This rulemaking codifies our interpretation of the MBTA as prohibiting only conduct directed at migratory birds. Thirteen States have regulations governing the treatment of oil pits, such as netting or screening of reserve pits, including measures beneficial to birds. We will also continue to work with other Federal agencies and stakeholders to promote conservation measures that reduce incidental take and protect migratory bird habitat, consistent with the Federal statutes we implement to manage, conserve, and protect migratory birds and other wildlife. Therefore, this rule would not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under E.O. 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). It is not an official legal edition of the Federal headings within the legal text of Federal Register documents. Though knowledge of the likely results of a suspect's conduct may be relevant to determine whether a suspect has the requisite intent to violate a criminal statute, it is not relevant under the MBTA for two reasons: First, because criminal misdemeanor violations under the MBTA are a strict-liability crime, they do not require proof of intent. The Service recognizes that these estimates may represent both over- and under-estimates depending on the mortality source. Within our environmental analysis of this rulemaking conducted under NEPA, we acknowledge that other Federal or State regulations may require measures that reduce incidental take of birds. Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (Act; 16 U.S.C. 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. Ind. These are unfortunately realities of modern life and beyond the scope of the MBTA. The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. 1503 & 1507. Comment: One commenter recommended that the Service prohibit incidental take that results from an extra-hazardous activity. E.O. By codifying the Service's interpretation, first outlined in Solicitor's Opinion, M-37050, this rulemaking would remove legal uncertainty for any individual, government entity, or business entity that undertakes any activity that may kill or take migratory birds incidental to otherwise lawful activity. As noted above, this rule is a significant regulatory action under E.O. The commenter called for the Office of Information and Regulatory Affairs to review the justification for consistency with these Executive Orders. Given the Service's recent elimination in the ESA regulations of automatic take protection for threatened species (subject to the adoption of species-specific 4(d) regulations), the proposed rule will have extremely deleterious impacts going forward as the Service increasingly lists species as threatened without affording them any protections for incidental take under the ESA. This site displays a prototype of a Web 2.0 version of the daily FWS-HQ-MB-2018-0090 and at https://www.doi.gov/solicitor/opinions. The commenters suggested that these later congressional interpretations should be given great weight and that failure to include incidental take within the scope of the statute would virtually nullify these amendments. Response: The regulatory impact analysis developed for the proposed rule documents compliance with Executive Orders 12866 and 13563 and was reviewed and approved by OMB's Office of Information and Regulatory Affairs. Instead, the balance of the legislative history favors the opposite interpretation as explained in the preamble. Thus, there appears to be no explicit basis in the language or the development of the MBTA for concluding that it was intended to be applied to any and all human activity that causes even unintentional deaths of migratory birds. . It does not require any delegation from Congress other than the delegations to the Secretary already included in the terms of the statute. Thirteen States (Illinois, Arkansas, Oklahoma, Texas, North Dakota, South Dakota, Nebraska, Montana, Wyoming, Colorado, Utah, New Mexico, and California) have regulations governing the treatment of oil pits such as netting or screening of reserve pits, including measures beneficial to birds. The commenters noted there is a successful history of the Federal, State, and local governments along with industry working in coordination to implement measures to reduce impacts to migratory birds and that the proposed rule would dismantle the extraordinary and successful history of this cooperation. Individual States therefore rely on Federal law (and the international treaties implemented by Federal law) to protect their own bird populations when individual birds migrate beyond their boundaries. ), we have determined the following: a. Response: The proposed rule does not alter the burden of proof for intentional take under the MBTA. (4) We reserve the right to suspend or revoke the authority of any agency or individual to undertake Additionally, the NRDC court found no meaningful difference between active and passive definitions of the term kill. 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