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DEPARTMENT OF THE INTERIOR transport or cause to be transported, carry or interpretations and an earlier Solicitor’s cause to be carried, or receive for shipment, Opinion, M–37041, ‘‘Incidental Take Fish and Wildlife Service transportation, carriage, or export, any Prohibited Under the Migratory Bird migratory bird, any part, nest, or egg of any Treaty Act.’’ The Office of the Solicitor 50 CFR Part 10 such bird, or any product, whether or not manufactured, which consists, or is performs the legal work for the [Docket No. FWS–HQ–MB–2018–0090; composed in whole or part, of any such bird Department of the Interior, including FF09M22000–201–FXMB1231090BPP0] or any part, nest, or egg thereof.... the U.S. Fish and Wildlife Service (hereafter ‘‘Service’’). The Service is the RIN 1018–BD76 16 U.S.C. 703(a). Section 3(a) of the MBTA authorizes Federal agency delegated the primary Regulations Governing Take of and directs the Secretary of the Interior responsibility for managing migratory Migratory Birds to ‘‘adopt suitable regulations’’ allowing birds. ‘‘hunting, taking, capture, killing, M–37050 thoroughly examined the AGENCY: Fish and Wildlife Service, possession, sale, purchase, shipment, text, history, and purpose of the MBTA Interior. transportation, carriage, or export of any and concluded that the MBTA’s ACTION: Final rule. such bird, or any part, nest, or egg prohibitions on pursuing, hunting, thereof’’ while considering (‘‘having due taking, capturing, killing, or attempting SUMMARY: We, the U.S. Fish and regard to’’) temperature zones and to do the same apply only to actions that Wildlife Service (FWS, Service, we), ‘‘distribution, abundance, economic are directed at migratory birds, their define the scope of the Migratory Bird value, breeding habits, and times and nests, or their eggs. On August 11, 2020, Treaty Act (MBTA or Act) as it applies lines of migratory flight of such birds.’’ a district court vacated M–37050, to conduct resulting in the injury or 16 U.S.C. 704(a). Section 3(a) also holding that the language of the MBTA death of migratory birds protected by requires the Secretary to ‘‘determine plainly prohibits incidental take, the Act. We determine that the MBTA’s when, to what extent, if at all, and by despite multiple courts failing to agree prohibitions on pursuing, hunting, what means, it is compatible with the on how to interpret the relevant taking, capturing, killing, or attempting terms of the conventions [listed in statutory language. Natural Res. Defense to do the same, apply only to actions section 2 between the United States and Council v. U.S. Dep’t of the Interior, directed at migratory birds, their nests, Canada, Mexico, Russia, and Japan]’’ to 2020 WL 4605235 (S.D.N.Y.). The or their eggs. adopt such regulations allowing these Department of Justice filed a notice of DATES: This rule is effective February 8, otherwise-prohibited activities. Id.; see appeal on October 8, 2020. We 2021. also Convention between the United respectfully disagree with the district ADDRESSES: Public comments submitted States and Great Britain for the court’s decision and have addressed the on the proposed rule and Protection of Migratory Birds, U.S.-Gr. court’s findings where appropriate in supplementary documents to the Brit., Aug. 16, 1916, 39 Stat. 1702, the discussion below. Moreover, M– proposed rule, including the amended by the Protocol between the 37050 is consistent with the Fifth environmental impact statement and United States and Canada Amending the Circuit appellate court decision in regulatory impact analysis, may be 1916 Convention for the Protection of United States v. CITGO Petroleum found at the Federal rulemaking portal Migratory Birds in Canada and the Corp., 801 F.3d 477 (5th Cir. 2015), http://www.regulations.gov in Docket United States, U.S.-Can., Dec. 14, 1995, which held that the MBTA does not No. FWS–HQ–MB–2018–0090. T.I.A.S. 12721; Convention between the prohibit incidental take. FOR FURTHER INFORMATION CONTACT: United States of America and Mexico This rule addresses the Service’s Jerome Ford, Assistant Director, for the Protection of Migratory Birds and responsibilities under the MBTA. Migratory Birds, at 202–208–1050. Game Mammals, U.S.-Mex., Feb. 7, Consistent with the language and SUPPLEMENTARY INFORMATION: 1936, 50 Stat. 1311, and Agreement legislative history of the MBTA, as Supplementing the Agreement of amended, and relevant case law, the Background February 7, 1936, U.S.-Mex., Mar. 10, Service defines the scope of the MBTA’s The Migratory Bird Treaty Act 1972, 23 U.S.T. 260; Convention prohibitions to reach only actions (MBTA; 16 U.S.C. 703 et seq.) was between the Government of the United directed at migratory birds, their nests, enacted in 1918 to help fulfill the States of America and the Government or their eggs. of Japan for the Protection of Migratory United States’ obligations under the Provisions of the Final Rule 1916 ‘‘Convention between the United Birds and Birds in Danger of Extinction, States and Great Britain for the and their Environment, U.S.-Japan, Mar. Scope of the Migratory Bird Treaty Act protection of Migratory Birds.’’ 39 Stat. 4, 1972, 25 U.S.T. 3329; and Convention As a matter of both law and policy, 1702 (Aug. 16, 1916) (ratified Dec. 7, between the United States of American the Service hereby adopts the 1916) (Migratory Bird Treaty). The list and the Union of Soviet Socialist conclusion of M–37050 in a regulation of applicable migratory birds protected Republics Concerning the Conservation defining the scope of the MBTA. M– by the MBTA is currently codified in of Migratory Birds and their 37050 is available on the internet at the title 50 of the Code of Federal Environment, U.S.-U.S.S.R., Nov. 19, Federal eRulemaking Portal: http:// Regulations at 50 CFR 10.13. In its 1976, 29 U.S.T. 4647. www.regulations.gov in Docket No. current form, section 2(a) of the MBTA On December 22, 2017, the Principal FWS–HQ–MB–2018–0090 and at provides in relevant part that, unless Deputy Solicitor of the Department of https://www.doi.gov/solicitor/opinions. permitted by regulations, it is unlawful: the Interior, exercising the authority of the Solicitor pursuant to Secretary’s The text and purpose of the MBTA at any time, by any means or in any manner, Order 3345, issued a legal opinion, M– indicate that the MBTA’s prohibitions to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, 37050, ‘‘The Migratory Bird Treaty Act on pursuing, hunting, taking, capturing, sell, offer to barter, barter, offer to purchase, Does Not Prohibit Incidental Take’’ (M– killing, or attempting to do the same purchase, deliver for shipment, ship, export, 37050 or M-Opinion). The Solicitor’s only criminalize actions that are import, cause to be shipped, exported, or interpretation marked a change from specifically directed at migratory birds, imported, deliver for transportation, prior U.S. Fish and Wildlife Service their nests, or their eggs.

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The relevant portion of the MBTA ‘‘capture,’’ and ‘‘kill.’’ Accordingly, the nobody is acquired by the natural law by the reads, ‘‘it shall be unlawful at any time, statutory construction canon of noscitur person who first possesses it. We do not by any means or in any manner, to a sociis (‘‘it is known by its associates’’) distinguish the acquisition of these wild pursue, hunt, take, capture, kill, attempt counsels in favor of reading each verb beasts and birds by whether one has captured to take, capture, or kill . . . any to have a related meaning. See Scalia & them on his own property [or] on the property of another; but he who wishes to migratory bird, [or] any part, nest, or egg Garner at 195 (‘‘The canon especially enter into the property of another to hunt can of any such bird.’’ 16 U.S.C. 703(a). Of holds that ‘words grouped in a list be readily prevented if the owner knows his the five referenced verbs, three—pursue, should be given related meanings.’’’ purpose to do so. hunt, and capture—unambiguously (quoting Third Nat’l Bank, 432 U.S. at require an action that is directed at 322)). Geer v. Connecticut, 161 U.S. 519, 523 migratory birds, nests, or eggs. To wit, Thus, when read together with the (1896) (quoting Digest, Book 41, Tit. 1, according to the entry for each word in other active verbs in section 2 of the De Adquir. Rer. Dom.). Likewise, a contemporary dictionary: MBTA, the proper meaning is evident. Blackstone’s Commentaries provide: • Pursue means ‘‘[t]o follow with a The operative verbs (‘‘pursue, hunt, A man may lastly have a qualified property view to overtake; to follow eagerly, or take, capture, kill’’) ‘‘are all affirmative in animals feroe naturoe, propter privilegium, with haste; to chase.’’ Webster’s Revised acts . . . which are directed that is, he may have the privilege of hunting, Unabridged Dictionary 1166 (1913); immediately and intentionally against a taking and killing them in exclusion of other • Hunt means ‘‘[t]o search for or particular animal—not acts or omissions persons. Here he has a transient property in follow after, as game or wild animals; to that indirectly and accidentally cause these animals usually called game so long as chase; to pursue for the purpose of they continue within his liberty, and may injury to a population of animals.’’ restrain any stranger from taking them catching or killing.’’ Id. at 713; and Sweet Home, 515 U.S. at 719–20 (Scalia, • therein; but the instant they depart into Capture means ‘‘[t]o seize or take J., dissenting) (agreeing with the another liberty, this qualified property possession of by force, surprise, or majority opinion that certain terms in ceases. stratagem; to overcome and hold; to the definition of the term ‘‘take’’ in the Id. at 526–27 (1896) (quoting 2 secure by effort.’’ Id. at 215. Endangered Species Act (ESA)— Blackstone Commentary 410). Thus, one does not passively or identical to the other prohibited acts Dictionary definitions of the term accidentally pursue, hunt, or capture. referenced in the MBTA—refer to ‘‘take’’ at the time of MBTA enactment Rather, each requires a deliberate action deliberate actions, while disagreeing specifically directed at achieving a goal. that the use of the additional were consistent with this historical use By contrast, the verbs ‘‘kill’’ and definitional term ‘‘harm’’—used only in in the context of hunting and capturing ‘‘take’’ are ambiguous in that they could the ESA—meant that ‘‘take’’ should be wildlife. For example, Webster’s defined refer to active or passive conduct, read more broadly to include actions not ‘‘take’’ to comprise various actions depending on the context. See id. at 813 deliberately directed at covered directed at reducing a desired object to (‘‘kill’’ may mean the more active ‘‘to species); see also United States v. personal control: ‘‘to lay hold of; to put to death; to slay’’ or serve as the CITGO Petroleum Corp., 801 F.3d 477, seize with the hands, or otherwise; to general term for depriving of life); id. at 489 n.10 (5th Cir. 2015) (‘‘Even if ‘kill’ grasp; to get into one’s hold or 1469 (‘‘take’’ has many definitions, does have independent meaning [from possession; to procure; to seize and including the more passive ‘‘[t]o receive ‘take’], the Supreme Court, interpreting carry away; to convey.’’ Webster’s into one’s hold, possession, etc., by a a similar list in the [Endangered Species Revised Unabridged Dictionary 1469 voluntary act’’ or the more active ‘‘[t]o Act], concluded that the terms pursue, (1913). lay hold of, as in grasping, seizing, hunt, shoot, wound, kill, trap, capture, Thus, under common law ‘‘[t]o ‘take,’ catching, capturing, adhering to, or the and collect, generally refer to deliberate when applied to wild animals, means to like; grasp; seize;—implying or actions’’); cf. Sweet Home, 515 U.S. at reduce those animals, by killing or suggesting the use of physical force’’). 698 n.11 (Congress’s decision to capturing, to human control.’’ Sweet Any ambiguity inherent in the specifically define ‘‘take’’ in the ESA Home, 515 U.S. at 717 (Scalia, J., statute’s use of the terms ‘‘take’’ and obviated the need to define its common- dissenting); see also CITGO, 801 F.3d at ‘‘kill’’ is resolved by applying law meaning). We explain the meaning 489 (‘‘Justice Scalia’s discussion of established rules of statutory of the terms ‘‘take’’ and ‘‘kill’’ in the ‘take’ as used in the Endangered Species construction. First and foremost, when context of section 2 in turn below. Act is not challenged here by the any words ‘‘are associated in a context The notion that ‘‘take’’ refers to an government . . . because Congress gave suggesting that the words have action directed immediately against a ‘take’ a broader meaning for that something in common, they should be particular animal is supported by the statute.’’). As is the case with the ESA, assigned a permissible meaning that use of the word ‘‘take’’ in the common in the MBTA, ‘‘[t]he taking prohibition makes them similar.’’ Antonin Scalia & law. As the Supreme Court has is only part of the regulatory plan . . ., Bryan A. Garner, Reading the Law: The instructed, ‘‘absent contrary indications, which covers all stages of the process by interpretation of Legal Texts, 195 (2012); Congress intends to adopt the common which protected wildlife is reduced to see also Third Nat’l Bank v. Impac, Ltd., law definition of statutory terms.’’ man’s dominion and made the object of 432 U.S. 312, 321 (1977) (‘‘As always, United States v. Shabani, 513 U.S. 10, profit,’’ and, as such, is ‘‘a term of art ‘[t]he meaning of particular phrases 13 (1994). As Justice Scalia noted, ‘‘the deeply embedded in the statutory and must be determined in context’ . . . .’’ term [‘take’] is as old as the law itself.’’ common law concerning wildlife’’ that (quoting SEC v. Nat’l Sec., Inc., 393 U.S. Sweet Home, 515 U.S. at 717 (Scalia, J., ‘‘describes a class of acts (not omissions) 453, 466 (1969)); Beecham v. United dissenting). For example, the Digest of done directly and intentionally (not States, 511 U.S. 368, 371 (1994) (the fact Justinian places ‘‘take’’ squarely in the indirectly and by accident) to particular that ‘‘several items in a list share an context of acquiring dominion over wild animals (not populations of animals).’’ attribute counsels in favor of animals, stating: Sweet Home, 515 U.S. at 718 (Scalia, J., interpreting the other items as [A]ll the animals which can be taken upon dissenting). The common-law meaning possessing that attribute as well’’). the earth, in the sea, or in the air, that is to of the term ‘‘take’’ is particularly Section 2 of the MBTA groups together say, wild animals, belong to those who take important here because, unlike the ESA, five verbs—‘‘pursue,’’ ‘‘hunt,’’ ‘‘take,’’ them.... Because that which belongs to which specifically defines the term

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‘‘take,’’ the MBTA does not define erred in conflating the active and ‘‘reinforce[ ] the dictionary definition, ‘‘take’’—instead it includes the term in passive definitions of the word ‘‘kill’’ and confirm[ ] that ‘take’ does not refer a list of similar actions. Thus, the Sweet and finding no meaningful difference to accidental activity or the unintended Home majority’s ultimate conclusion between the two. The cases cited by the results of passive conduct.’’ Brigham Oil that Congress’s decision to define ‘‘take’’ court in footnote 13 interpreting the & Gas, 840 F. Supp. 2d at 1209. in the ESA obviated the need to divine term ‘‘kill’’ do so in the context of To support an argument that the terms its common-law meaning is inapplicable criminal homicide, which ‘‘take’’ and ‘‘kill’’ should be read here. See id. at 697, n.10. Instead, the unsurprisingly interprets ‘‘kill’’ in the expansively to include incidental opposite is true. Congress intended broader sense. These cases are also conduct, a number of courts including ‘‘take’’ to be read consistent with its inapposite because they do not interpret the NRDC court, as well as the prior M- common law meaning—to reduce birds the term ‘‘kill’’ in relation to adjacent, Opinion, focused on the MBTA’s to human control. related terms that could be read to limit direction that a prohibited act can occur It is also reasonable to conclude that effectively the scope of ‘‘kill’’ in its ‘‘at any time, by any means, in any the MBTA’s prohibition on killing is general sense. Instead, because the term manner’’ to support the conclusion that similarly limited to deliberate acts that ‘‘kill’’ is ambiguous in the context of the statute prohibits any activity that result in bird deaths. See Newton section 2, we must read ‘‘kill’’ along results in the death of a bird, which County Wildlife Ass’n v. U.S. Forest with the preceding terms and conclude would necessarily include incidental Serv., 113 F.3d 110, 115 (8th Cir. 1997) they are all active terms describing take. However, the quoted statutory (‘‘MBTA’s plain language prohibits active conduct. language does not change the nature of conduct directed at migratory The NRDC district court predicated its those prohibited acts and simply birds.... [T]he ambiguous terms ‘take’ broad reading of ‘‘kill’’ primarily on the clarifies that activities directed at and ‘kill’ in 16 U.S.C. 703 mean notion that a narrower reading would migratory birds, such as hunting and ‘physical conduct of the sort engaged in read the term out of the Act by poaching, are prohibited whenever and by hunters and poachers....’’’ depriving it of independent meaning. wherever they occur and whatever (quoting Seattle Audubon Soc’y v. The court reasoned that it is difficult to manner is applied, be it a shotgun, a Evans, 952 F.2d 297, 302 (9th Cir. conceive of an activity where ‘‘kill’’ bow, or some other creative approach to 1991))); United States v. CITGO applies, but ‘‘hunt’’ and ‘‘take’’ do not. deliberately taking birds. See generally Petroleum Corp., 801 F.3d 477, 489 n.10 To the contrary, there are several CITGO, 801 F.3d at 490 (‘‘The addition (5th Cir. 2015) (‘‘there is reason to think situations where ‘‘kill’’ retains of adverbial phrases connoting ‘means’ that the MBTA’s prohibition on ‘killing’ independent meaning. For example, and ‘manner,’ however, does not serve is similarly limited to deliberate acts consistent with a product’s usage as to transform the nature of the activities that effect bird deaths’’). authorized by the Environmental themselves. For instance, the manner By contrast, the NRDC court Protection Agency and based on its and means of hunting may differ from interpreted ‘‘kill’’ more expansively, intended usage, a farmer could spread bow hunting to rifles, shotguns, and air holding that, in combination with the poisoned bait to kill birds depredating rifles, but hunting is still a deliberately phrase ‘‘by any means or in any on her crops. That action is directed at conducted activity. Likewise, rendering manner,’’ the MBTA unambiguously birds but does not ‘‘take’’ them in the all-inclusive the manner and means of prohibits incidental killing. The court common law sense that ‘‘take’’ means to ‘taking’ migratory birds does not change centered its reading of section 2 around reduce wildlife to human physical what ‘take’ means, it merely modifies its conclusion that any means of killing control, and it could also not be fairly the mode of take.’’). migratory birds is prohibited, whether characterized as hunting, pursuing, or The NRDC court countered that the killing is the result of an action capturing them either. Instead, the referencing different manners of taking directed at a migratory bird or wholly action was directed at protecting the birds does not give effect to the ‘‘by any the result of passive conduct. While the farmer’s crops from the birds, but not means and in any manner’’ language, term ‘‘kill’’ can certainly be interpreted physically possessing or controlling the but instead clarifies the term ‘‘hunt’’ broadly in a general sense, we disagree birds in any way other than killing because the referenced activities are that ‘‘kill’’ should take on its most them. Likewise, a county road and primarily different means of hunting. expansive meaning in the context of highway department could use However, other actions such as section 2 of the MBTA. machinery to destroy bird nests under a poisoning bait to control birds Additionally, the NRDC court found bridge. Any chicks within those nests depredating on crops would ‘‘kill’’ birds no meaningful difference between active would likely be destroyed killing those outside the context of hunting. Many and passive definitions of the term chicks, but the maintenance workers other methods of hunting, capturing, ‘‘kill.’’ The court focused on one would not ‘‘take’’ them in the common pursuing, taking, or killing birds no possible reading of ‘‘kill,’’ meaning ‘‘to law sense. Moreover, as noted above, at doubt exist, and that is precisely the deprive of life,’’ which could be least two appellate courts have point. Congress used the operative construed as either active or passive specifically found that the terms ‘‘take’’ language to ensure that any method conduct. However, the term ‘‘kill’’ can and ‘‘kill’’ are ambiguous and apply to employed could amount to a violation be read purely as an active verb, physical conduct of hunters and of the MBTA, so long as it involves one meaning, ‘‘to put to death; to slay.’’ poachers. Newton County; Seattle of the enumerated prohibited actions When contrasted with the more passive Audubon. and is directed at migratory birds. definition as the general term for This conclusion is also supported by The prior Solicitor’s Opinion, M– depriving of life, the difference is clear. the Service’s longstanding 37041, took a different tack from the Focusing on that difference and reading implementing regulations, which define NRDC court and assumed that because the term ‘‘kill’’ in relation to the other ‘‘take’’ to mean ‘‘to pursue, hunt, shoot, the criminal misdemeanor provision of prohibited actions in section 2 before it, wound, kill, trap, capture, or collect’’ or the MBTA is a strict-liability crime, there is a compelling reason to read the attempt to do the same. 50 CFR 10.12. meaning that no mens rea or criminal term ‘‘kill’’ in an active sense. That is, The component actions of ‘‘take’’ intent is required for a violation to have all the words before the word ‘‘kill’’ are involve direct actions to reduce animals taken place, any act that takes or kills active verbs. Thus, the NRDC court to human control. As such, they a bird must be covered as long as the act

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results in the death of a bird. In making interplay between activities that are sufficient supply to permit them to go back that assumption, M–37041 improperly specifically directed at birds and the there. ignored the meaning and context of the strict liability standard of the MBTA: Protection of Migratory Birds: Hearing actual acts prohibited by the statute. [A comment in the legislative history] in on H.R. 20080 Before the House Comm. Instead, the opinion presumed that the favor of strict liability does not show any on Foreign Affairs, 64th Cong. 22–23 lack of a mental state requirement for a intention on the part of Congress to extend (1917) (statement of R.W. Williams, misdemeanor violation of the MBTA the scope of the MBTA beyond hunting, Solicitor’s Office, Department of equated to reading the prohibited acts trapping, poaching, and trading in birds and Agriculture). Likewise, the Chief of the ‘‘kill’’ and ‘‘take’’ as broadly applying to bird parts to reach any and all human activity Department of Agriculture’s Bureau of actions not specifically directed at that might cause the death of a migratory bird. Those who engage in such activity and Biological Survey noted that he ‘‘ha[s] migratory birds, so long as the result is always had the idea that [passenger their death or injury. However, the who accidentally kill a protected migratory bird or who violate the limits on their pigeons] were destroyed by relevant acts prohibited by the MBTA permits may be charged with misdemeanors overhunting, being killed for food and are voluntary acts directed at killing or without proof of intent to kill a protected for sport.’’ Protection of Migratory Birds: reducing an animal to human control, bird or intent to violate the terms of a permit. Hearing on H.R. 20080 Before the House such as when a hunter shoots a That does not mean, however, that Congress Comm. on Foreign Affairs, 64th Cong. protected bird causing its death. The intended for ‘‘strict liability’’ to apply to all 11 (1917) (statement of E. W. Nelson, key remains that the actor was engaged forms of human activity, such as cutting a Chief Bureau of Biological Survey, in an activity the object of which was to tree, mowing a hayfield, or flying a plane. The 1986 amendment and corresponding Department of Agriculture). kill or render a bird subject to human Statements from individual control. legislative history reveal only an intention to close a loophole that might prevent felony Congressmen evince a similar focus on By contrast, liability fails to attach to hunting. Senator Smith, ‘‘who actions that are not directed toward prosecutions for commercial trafficking in migratory birds and their parts. introduced and championed the Act rendering an animal subject to human Thus, there appears to be no explicit basis . . . in the Senate,’’ Leaders in Recent control. Common examples of such in the language or the development of the Successful Fight for the Migratory Bird actions include driving a car, allowing MBTA for concluding that it was intended to Treaty Act, Bulletin—The American a pet cat to roam outdoors, or erecting be applied to any and all human activity that Game Protective Association, July 1918, a windowed building. All of these causes even unintentional deaths of at 5, explained: actions could foreseeably result in the migratory birds. deaths of protected birds, and all would Nobody is trying to do anything here be violations of the MBTA under the 927 F. Supp. at 1581 (referencing S. except to keep pothunters from killing game now-withdrawn M-Opinion if they did Rep. No. 99–445, at 16 (1986), reprinted out of season, ruining the eggs of nesting in fact result in deaths of protected in 1986 U.S.C.C.A.N. 6113, 6128). Thus, birds, and ruining the country by it. Enough birds will keep every insect off of every tree birds, yet none of these actions have as limiting the range of actions prohibited by the MBTA to those that are directed in America, and if you will quit shooting their object rendering any animal them, they will do it. subject to human control. Because no at migratory birds will focus ‘‘take’’ has occurred within the meaning prosecutions on activities like hunting 55 Cong. Rec. 4816 (statement of Sen. of the MBTA, the strict-liability and trapping and exclude more Smith) (1917). Likewise, during provisions of the Act would not be attenuated conduct, such as lawful hearings of the House Foreign Affairs triggered. commercial activity, that Committee, Congressman Miller, a The prior M-Opinion posited that unintentionally and indirectly results in ‘‘vigorous fighter, who distinguished amendments to the MBTA imposing the death of migratory birds. himself in the debate’’ over the MBTA, Leaders in Recent Successful Fight for mental state requirements for specific The History of the MBTA offenses were only necessary if no the Migratory Bird Treaty Act, mental state is otherwise required. The history of the MBTA and the Bulletin—The American Game However, the conclusion that the taking debate surrounding its adoption Protective Association, July 1918, at 5, and killing of migratory birds is a strict- illustrate that the Act was part of put the MBTA squarely in the context liability crime does not answer the Congress’s efforts to regulate the of hunting: separate question of what acts are hunting of migratory birds in direct I want to assure you . . . that I am heartily criminalized under the statute. The response to the extreme over-hunting, in sympathy with this legislation. I want it Fifth Circuit in CITGO stated, ‘‘we largely for commercial purposes, that to go through, because I am up there every disagree that because misdemeanor had occurred over the years. See United fall, and I know what the trouble is. The MBTA violations are strict liability States v. Moon Lake Electric Ass’n, 45 trouble is in shooting the ducks in Louisiana, crimes, a ‘take’ includes acts (or F. Supp. 2d 1070, 1080 (D. Colo. 1999) Arkansas, and Texas in the summer time, and omissions) that indirectly or (‘‘the MBTA’s legislative history also killing them when they are nesting up accidentally kill migratory birds.’’ The indicates that Congress intended to in Canada. court goes on to note that ‘‘[a] person regulate recreational and commercial Protection of Migratory Birds: Hearing whose car accidentally collided with the hunting’’); Mahler, 927 F. Supp. at 1574 on H.R. 20080 Before the House Comm. bird . . . has committed no act ‘taking’ (‘‘The MBTA was designed to forestall on Foreign Affairs, 64th Cong. 7 (1917) the bird for which he could be held hunting of migratory birds and the sale (statement of Rep. Miller). strictly liable. Nor do the owners of of their parts’’). Testimony concerning In seeking to take a broader view of electrical lines ‘take’ migratory birds the MBTA given by the Solicitor’s Office congressional purpose, the Moon Lake who run into them. These distinctions for the Department of Agriculture court looked to other contemporary are inherent in the nature of the word underscores this focus: statements that cited the destruction of ‘taking’ and reveal the strict liability We people down here hunt [migratory habitat, along with improvements in argument as a non-sequitur.’’ 801 F.3d birds]. The Canadians reasonably want some firearms, as a cause of the decline in at 493. Similarly, in Mahler v. U.S. assurances from the United States that if they migratory bird populations. The court Forest Serv., 927 F. Supp. 1559 (S.D. let those birds rear their young up there and even suggested that these statements, Ind. 1996), the court described the come down here, we will preserve a which ‘‘anticipated application of the

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MBTA to children who act ‘through 911, 913–14 (8th Cir. 1981), aff’d on controversial and legally fraught subject. inadvertence’ or ‘through accident,’ ’’ other grounds, 460 U.S. 300 (1983). For example, on the floor of the Senate, supported a broader reading of the Some courts have attempted to Senator Reed proclaimed: legislative history. Moon Lake, 45 F. interpret a number of floor statements as I am opposed not only now in reference to Supp. 2d at 1080–81. Upon closer supporting the notion that Congress this bill [the MBTA], but I am opposed as a examination, these statements are intended the MBTA to regulate more general proposition to conferring power of instead consistent with a limited than just hunting and poaching, but that kind upon an agent of the reading of the MBTA. those statements reflect an intention to Government.... One such contemporary statement prohibit actions directed at birds— . . . Section 3 proposes to turn these cited by the court is a letter from whether accomplished through hunting powers over to the Secretary of Secretary of State Robert Lansing to the or some other means intended to kill Agriculture. . . to make it a crime for a man to shoot game on his own farm or to make President attributing the decrease in birds directly. For example, some it perfectly legal to shoot it on his own migratory bird populations to two Members ‘‘anticipated application of the farm.... general issues: MBTA to children who act ‘through When a Secretary of Agriculture does a • Habitat destruction, described inadvertence’ or ‘through accident.’ ’’ thing of that kind I have no hesitancy in generally as ‘‘the extension of What are you going to do in a case like this: saying that he is doing a thing that is utterly agriculture, and particularly the A barefoot boy, as barefoot boys sometimes indefensible, and that the Secretary of draining on a large scale of swamps and do, largely through inadvertence and without Agriculture who does it ought to be driven meadows;’’ and meaning anything wrong, happens to throw from office.... • Hunting, described in terms of a stone at and strikes and injures a robin’s 55 Cong. Rec. 4813 (1917) (statement of ‘‘improved firearms and a vast increase nest and breaks one of the eggs, whereupon Sen. Reed). in the number of sportsmen.’’ he is hauled before a court for violation of Federal regulation of hunting was also Representative Baker referenced these a solemn treaty entered into between the legally tenuous at that time. Whether statements during the House floor United States of America and the Provinces the Federal Government had any of Canada. debate over the MBTA, implying that authority to regulate the killing or taking the MBTA was intended to address both Moon Lake, 45 F. Supp. 2d at 1081 of any wild animal was an open issues. Moon Lake, 45 F. Supp. 2d at (quoting 56 Cong. Rec. 7455 (1918) question in 1918. Just over 20 years 1080–81 (quoting H. Rep. No. 65–243, at (statement of Rep. Mondell)). earlier, the Supreme Court in Geer had 2 (1918) (letter from Secretary of State ‘‘[I]nadvertence’’ in this statement refers ruled that the States exercised the Robert Lansing to the President)). to the boy’s mens rea. As the rest of the power of ownership over wild game in However, Congress addressed hunting sentence clarifies, the hypothetical boy trust, implicitly precluding Federal and habitat destruction in the context of acted ‘‘without meaning anything regulation. See Geer v. Connecticut, 161 the Migratory Bird Treaty through two wrong,’’ not that he acted U.S. 519 (1896). When Congress did separate acts: unintentionally or accidentally in attempt to assert a degree of Federal • First, in 1918, Congress adopted the damaging the robin’s nest. This is jurisdiction over wild game with the MBTA to address the direct and reinforced by the rest of the 1913 Weeks-McLean Law, it was met intentional killing of migratory birds; hypothetical, which posits that the boy with mixed results in the courts, leaving • Second, in 1929, Congress adopted threw ‘‘a stone at and strikes and injures the question pending before the the Migratory Bird Conservation Act to a robin’s nest.’’ The underlying act is Supreme Court at the time of the ‘‘more effectively’’ implement the directed specifically at the robin’s nest. MBTA’s enactment. See, e.g., United Migratory Bird Treaty by protecting In other statements, various members of States v. Shaver, 214 F. 154, 160 (E.D. certain migratory bird habitats. Congress expressed concern about Ark. 1914); United States v. McCullagh, The Migratory Bird Conservation Act ‘‘sportsmen,’’ people ‘‘killing’’ birds, 221 F. 288 (D. Kan. 1915). It was not provided the authority to purchase or ‘‘shooting’’ of game birds or until Missouri v. Holland in 1920 that rent land for the conservation of ‘‘destruction’’ of insectivorous birds, the Court, relying on authority derived migratory birds, including for the and whether the purpose of the MBTA from the Migratory Bird Treaty (Canada establishment of inviolate ‘‘sanctuaries’’ was to favor a steady supply of ‘‘game Convention) under the Treaty Clause of wherein migratory bird habitats would animals for the upper classes.’’ Moon the U.S. Constitution, definitively be protected from persons ‘‘cut[ting], Lake, 45 F. Supp. 2d at 1080–81. One acknowledged the Federal burn[ing], or destroy[ing] any timber, Member of Congress even offered a Government’s ability to regulate the grass, or other natural growth.’’ statement that explains why the statute taking of wild birds. 252 U.S. 416, 432– Migratory Bird Conservation Act, Sec. is not redundant in its use of the various 33 (1920). 10, 45 Stat. 1222, 1224 (1929) (codified terms to explain what activities are Given the legal uncertainty and as amended at 16 U.S.C. 715–715s). If regulated: ‘‘[T]hey cannot hunt ducks in political controversy surrounding the MBTA was originally understood to Indiana in the fall, because they cannot Federal regulation of intentional protect migratory bird habitats from kill them. I have never been able to see hunting in 1918, it is highly unlikely incidental destruction, enactment of the why you cannot hunt, whether you kill that Congress intended to confer Migratory Bird Conservation Act 11 or not. There is no embargo on hunting, authority upon the executive branch to years later would have been largely at least down in South Carolina....’’’ prohibit all manner of activity that had superfluous. Instead, the MBTA and the Id. at 1081 (quoting 56 Cong. Rec. 7446 an incidental impact on migratory birds. Migratory Bird Conservation Act are (1918) (statement of Rep. Stevenson)). The provisions of the 1916 Canada complementary: ‘‘Together, the Treaty That Congress was animated regarding Convention authorize only certain Act in regulating hunting and potential restrictions on hunting and its circumscribed activities specifically possession and the Conservation Act by impact on individual hunters is evident directed at migratory birds. Articles II establishing sanctuaries and preserving from even the statements relied upon as through IV of the Convention create natural waterfowl habitat help support for the conclusion that the closed periods during which hunting of implement our national commitment to statute reaches incidental take. migratory species covered by the the protection of migratory birds.’’ Finally, in 1918, Federal regulation of Convention may be authorized only for United States v. North Dakota, 650 F.2d the hunting of wild birds was a highly limited purposes, such as scientific use

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or propagation. Article VII allows taking throughout the year for subsistence (‘‘Many other statutes enacted in the to resolve conflicts under extraordinary purposes); Protocol between the intervening years also counsel against conditions when birds become seriously Government of the United States of reading the MBTA to prohibit any and injurious to agricultural or other America and the Government of the all migratory bird deaths resulting from interests, subject to permits issued by United Mexican States Amending the logging activities in national forests. As the parties under regulations prescribed Convention for Protection of Migratory is apparent from the record in this case, by them respectively. Additionally, Birds and Game Mammals, Sen. Treaty the Forest Service must comply with a Article V prohibits the taking of eggs or Doc. 105–26 (May 5, 1997) (authorizing myriad of statutory and regulatory nests of certain protected species, indigenous groups to harvest migratory requirements to authorize even the very except for scientific and propagating birds and eggs throughout the year for modest type of salvage logging operation purposes under regulations issued by subsistence purposes). of a few acres of dead and dying trees the parties, and Article VI prohibits It was not until more than 50 years at issue in this case. Those laws require transport, import, and export of after the initial adoption of the MBTA the Forest Service to manage national protected species except for scientific or and 25 years after the Mexico Treaty Act forests so as to balance many competing propagating purposes. See Canada that Federal prosecutors began applying goals, including timber production, Convention, 39 Stat. 1702. the MBTA to incidental actions. See biodiversity, protection of endangered Subsequent legislative history does Lilley & Firestone at 1181 (‘‘In the early and threatened species, human not undermine a limited interpretation 1970s, United States v. Union Texas recreation, aesthetic concerns, and of the MBTA, as enacted in 1918. The Petroleum [No, 73–CR–127 (D. Colo. Jul. many others.’’). Given the ‘‘fixed-meaning canon of statutory 11, 1973)] marked the first case dealing overwhelming evidence that the construction directs that ‘‘[w]ords must with the issue of incidental take.’’). This primary purpose of section 2, as be given the meaning they had when the newfound Federal authority was not amended by the Mexico Treaty Act, was text was adopted.’’ Scalia & Garner at accompanied by any corresponding to control over-hunting, the references 78. The meaning of written instruments legislative change. The only to the later agreements do not bear the ‘‘does not alter. That which it meant contemporaneous changes to section 2 weight of the conclusion reached by the when adopted, it means now.’’ South of the MBTA were technical updates prior Opinion (M–37041). Carolina v. United States, 199 U.S. 437, recognizing the adoption of a treaty with Thus, the only legislative enactment 448 (1905). Japan. See Act of June 1, 1974, Public concerning incidental activity under the The operative language in section 2 of Law 93–300, 88 Stat. 190. Implementing MBTA is the 2003 appropriations bill the MBTA has changed little since its legislation for the treaty with the Soviet that explicitly exempted military- adoption in 1918. The current iteration Union also did not amend section 2. See readiness activities from liability under of the relevant language—making it Fish and Wildlife Improvement Act of the MBTA for incidental takings. See unlawful for persons ‘‘at any time, by 1978, Public Law 95–616, sec. 3(h), 92 Bob Stump National Defense any means or in any manner, to pursue, Stat. 3110. Similar to the earlier Authorization Act for Fiscal Year 2003, hunt, take, capture, kill, attempt to take, Conventions, the provisions of the Japan Public Law 107–314, Div. A, Title III, capture, or kill, possess’’ specific and Russia Conventions authorized Sec. 315, 116 Stat. 2509 (2002), migratory birds—was adopted in 1935 purposeful take for specific activities reprinted in 16 U.S.C.A. 703, Historical as part of the Mexico Treaty Act and has such as hunting, scientific, educational, and Statutory Notes. There is nothing in remained unchanged since then. and propagation purposes, and this legislation that authorizes the Compare Mexico Treaty Act, 49 Stat. protection against injury to persons and government to pursue incidental takings 1555, Sec. 3 with 16 U.S.C. 703(a). As property. However, they also outlined charges in other contexts. Rather, some with the 1916 Canada Convention, the mechanisms to protect habitat and have ‘‘argue[d] that Congress expanded Mexico Convention focused primarily prevent damage from pollution and the definition of ‘take’ by negative on hunting and establishing protections other environmental degradation implication’’ since ‘‘[t]he exemption did for birds in the context of take and (domestically implemented by the not extend to the ‘operation of industrial possession for commercial use. See Migratory Bird Conservation Act and facilities,’ even though the government Convention between the United States other applicable Federal laws). See had previously prosecuted activities of America and Mexico for the Convention between the Government of that indirectly affect birds.’’ CITGO, 801 Protection of Migratory Birds and Game the United States and the Government F.3d at 490–91. Mammals, 50 Stat. 1311 (Feb. 7, 1936) of Japan for the Protection of Migratory This argument is contrary to the (Mexico Convention). Subsequent birds and Birds in Danger of Extinction, Supreme Court’s admonition that Protocols amending both these and their Environment, 25 U.S.T. 3329 ‘‘Congress . . . does not alter the Conventions also did not explicitly (Mar. 4, 1972) (Japan Convention); fundamental details of a regulatory address incidental take or otherwise Convention between the United States scheme in vague terms or ancillary broaden their scope to prohibit anything of America and the Union of Soviet provisions—it does not, one might say, other than purposeful take of migratory Socialist Republics Concerning the hide elephants in mouseholes.’’ birds. See Protocol between the Conservation of Migratory Birds and Whitman v. Am. Trucking Ass’ns, 531 Government of the United States and their Environment, 29 U.S.T. 4647 (Nov. U.S. 457, 468 (2001). As the Fifth the Government of Canada Amending 19, 1976) (Russia Convention). Circuit explained, ‘‘[a] single carve-out the 1916 Convention between the No changes were made to the section from the law cannot mean that the United Kingdom and the United States of the MBTA at issue here following the entire coverage of the MBTA was of America for the Protection of later conventions except that the Act implicitly and hugely expanded.’’ Migratory Birds, Sen. Treaty Doc. 104– was modified to include references to CITGO, 801 F.3d at 491. Rather, it 28 (Dec. 14, 1995) (outlining these later agreements. Certainly, other appears Congress acted in a limited conservation principles to ensure long- Federal laws may require consideration fashion to preempt a specific and term conservation of migratory birds, of potential impacts to birds and their immediate impediment to military- amending closed seasons, and habitat in a way that furthers the goals readiness activities. ‘‘Whether Congress authorizing indigenous groups to of the Conventions’ broad statements. deliberately avoided more broadly harvest migratory birds and eggs See, e.g., Mahler, 927 F. Supp. at 1581 changing the MBTA or simply chose to

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address a discrete problem, the most CITGO, 801 F.3d at 493, and ‘‘offers However, it would also turn many that can be said is that Congress did no unlimited potential for criminal Americans into potential criminals. See more than the plain text of the prosecutions.’’ Brigham Oil, 840 F. Mahler, 927 F. Supp. 1577–78 (listing a amendment means.’’ Id. It did not hide Supp. 2d at 1213. ‘‘The list of birds now litany of scenarios where normal the elephant of incidental takings in the protected as ‘migratory birds’ under the everyday actions could potentially and mouse hole of a narrow appropriations MBTA is a long one, including many of incidentally lead to the death of a single provision. the most numerous and least bird or breaking of an egg in a nest)). Such an interpretation could lead to Constitutional Issues endangered species one can imagine.’’ Mahler, 927 F. Supp. at 1576. Currently, absurd results, which are to be avoided. The Supreme Court has recognized over 1,000 species of birds—including See Griffin v. Oceanic Contractors, 458 that ‘‘[a] fundamental principle in our ‘‘all species native to the United States U.S. 564, 575 (1982) (‘‘interpretations of legal system is that laws which regulate or its territories’’—are protected by the a statute which would produce absurd persons or entities must give fair notice MBTA. 78 FR 65,844, 65,845 (Nov. 1, results are to be avoided if alternative of conduct that is forbidden or 2013); see also 50 CFR 10.13 (list of interpretations consistent with the required.’’ FCC v. Fox Television protected migratory birds); Migratory legislative purpose are available’’); see Stations, Inc., 567 U.S. 239, 253 (2012). Bird Permits; Programmatic also K Mart Corp. v. Cartier, 486 U.S. ‘‘No one may be required at peril of life, Environmental Impact Statement, 80 FR 281, 324 n.2 (1988) (Scalia, J. concurring liberty or property to speculate as to the 30032, 30033 (May 26, 2015) (‘‘Of the in part and dissenting in part) (‘‘it is a meaning of penal statutes.’’ Lanzetta v. 1,027 currently protected species, venerable principle that a law will not New Jersey, 306 U.S. 451, 453 (1939). approximately 8% are either listed (in be interpreted to produce absurd Accordingly, a ‘‘statute which either whole or in part) as threatened or results.’’). forbids or requires the doing of an act endangered under the Endangered These potentially absurd results are in terms so vague that men of common Species Act (ESA) (16 U.S.C. 1531 et not ameliorated by limiting the intelligence must necessarily guess at its seq.) and 25% are designated (in whole definition of ‘‘incidental take’’ to ‘‘direct meaning and differ as to its application, or in part) as Birds of Conservation and foreseeable’’ harm as some courts violates the first essential of due process Concern (BCC).’’). Service analysis have suggested. See U.S. Fish and of law.’’ Fox Television, 567 U.S. at 253 indicates that the top threats to birds Wildlife Service Manual, part 720, ch. 3, (quoting Connally v. General Constr. are: Incidental Take Prohibited Under the Co., 269 U.S. 385, 391 (1926)). Thus, • Cats, which kill an estimated 2.4 Migratory Bird Treaty Act (Jan. 11, ‘‘[a] conviction or punishment fails to billion birds per year; 2017). The court in Moon Lake comply with due process if the statute • Collisions with building glass, identified an ‘‘important and inherent or regulation under which it is obtained which kill an estimated 599 million limiting feature of the MBTA’s ‘fails to provide a person of ordinary birds per year; misdemeanor provision: To obtain a intelligence fair notice of what is • Collisions with vehicles, which kill guilty verdict ..., the government prohibited, or is so standardless that it an estimated 214.5 million birds per must prove proximate causation.’’ Moon authorizes or encourages seriously year; Lake, 45 F. Supp. 2d at 1085. Quoting discriminatory enforcement.’ ’’ Id. • Chemical poisoning (e.g., pesticides Black’s Law Dictionary, the court (quoting United States v. Williams, 553 and other toxins), which kill an defines proximate cause as ‘‘that which, U.S. 285, 304 (2008)). estimated 72 million birds per year; in a natural and continuous sequence, Assuming, arguendo, that the MBTA • Collisions with electrical lines, unbroken by any efficient intervening is ambiguous, the interpretation that which kill an estimated 25.5 million cause, produces the injury and without limits its application to conduct birds per year; which the accident could not have specifically directed at birds is • Collisions with communications happened, if the injury be one which necessary to avoid potential towers, which kill an estimated 6.6 might be reasonably anticipated or constitutional concerns. As the Court million birds per year; foreseen as a natural consequence of the has advised, ‘‘where an otherwise • Electrocutions, which kill an wrongful act.’’ Id. (quoting Black’s Law acceptable construction of a statute estimated 5.6 million birds per year; Dictionary 1225 (6th ed. 1990)) would raise serious constitutional • Oil pits, which kill an estimated (emphasis in original). The Tenth problems, the Court will construe the 750 thousand birds per year; and Circuit in Apollo Energies took a similar statute to avoid such problems unless • Collisions with wind turbines, approach, holding ‘‘the MBTA requires such construction is plainly contrary to which kill an estimated 234 thousand a defendant to proximately cause the the intent of Congress.’’ Edward J. birds per year. statute’s violation for the statute to pass DeBartolo Corp. v. Fla. Gulf Coast Bldg. U.S. Fish and Wildlife Service, constitutional muster’’ and quoting from & Constr. Trades Council, 485 U.S. 568, Threats to Birds: Migratory Birds Black’s Law Dictionary to define 575 (1988); cf. Natural Res. Defense Mortality—Questions and Answers, ‘‘proximate cause.’’ Apollo Energies, 611 Council v. U.S. Dep’t of the Interior, available at https://www.fws.gov/birds/ F.3d at 690. 2020 WL 4605235 (S.D.N.Y. Aug. 11, bird-enthusiasts/threats-to-birds.php Contrary to the suggestion of the 2020) (dismissing constitutional (last updated September 14, 2018). courts in Moon Lake and Apollo concerns, but on the basis that the Interpreting the MBTA to apply strict Energies that principles of proximate relevant language is unambiguous). criminal liability to any instance where causation can be read into the statute to Here, an attempt to impose liability for a migratory bird is killed as a result of define and limit the scope of incidental acts that are not directed at migratory these threats would certainly be a clear take, the death of birds as a result of birds raises just such constitutional and understandable rule. See United activities such as driving, flying, or concerns. States v. Apollo Energies, Inc., 611 F.3d maintaining buildings with large The ‘‘scope of liability’’ under an 679, 689 (10th Cir. 2010) (concluding windows is a ‘‘direct,’’ ‘‘reasonably interpretation of the MBTA that extends that under an incidental take anticipated,’’ and ‘‘probable’’ criminal liability to all persons who kill interpretation, ‘‘[t]he actions consequence of those actions. As or take migratory birds incidental to criminalized by the MBTA may be discussed above, collisions with another activity is ‘‘hard to overstate,’’ legion, but they are not vague’’). buildings and cars are the second and

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third most common human-caused pesticides. But the court was silent as to Under this approach, it is literally threat to birds, killing an estimated 599 how far this rule extends, even in the impossible for individuals and million and 214.5 million birds per relatively narrow context of pesticides. companies to know exactly what is year, respectively. It is eminently This type of uncertainty is required of them under the law when foreseeable and probable that cars and problematic under the Supreme Court’s otherwise-lawful activities necessarily windows will kill birds. Thus, limiting due process jurisprudence. See Rollins, result in accidental bird deaths. Even if incidental take to direct and foreseeable 706 F. Supp. at 745 (dismissing charges they comply with everything requested results does little to prevent absurd against a farmer who applied pesticides of them by the Service, they may still be outcomes. to his fields that killed a flock of geese, prosecuted, and still found guilty of To avoid these absurd results, the reasoning ‘‘[f]armers have a right to criminal conduct. See generally United government has historically relied on know what conduct of theirs is criminal, States v. FMC Corp., 572 F.2d 902, 904 prosecutorial discretion. See Ogden at especially where that conduct consists (2d Cir. 1978) (the court instructed the 29 (‘‘Historically, the limiting of common farming practices carried on jury not to consider the company’s mechanism on the prosecution of for many years in the community. While remediation efforts as a defense: incidental taking under the MBTA by statutes do not have to be drafted with ‘‘Therefore, under the law, good will non-federal persons has been the ‘mathematical certainty,’ they must be and good intention and measures taken exercise of prosecutorial discretion by drafted with a ‘reasonable degree of to prevent the killing of the birds are not the FWS.’’); see generally FMC, 572 F.2d certainty.’ The MBTA fails this test. . . . a defense.’’). In sum, due process at 905 (situations ‘‘such as deaths Under the facts of this case, the MBTA ‘‘requires legislatures to set reasonably caused by automobiles, airplanes, plate does not give ‘fair notice as to what clear guidelines for law enforcement glass modern office buildings or picture constitutes illegal conduct’ so that [the officials and triers of fact in order to windows in residential dwellings . . . farmer] could ‘conform his conduct to prevent ‘arbitrary and discriminatory properly can be left to the sound the requirements of the law.’ ’’ (internal enforcement.’ ’’ Smith v. Goguen, 415 discretion of prosecutors and the citations omitted)). U.S. 566, 572–73 (1974). courts’’). Yet, the Supreme Court has While the MBTA does contemplate Reading the MBTA to capture declared ‘‘[i]t will not do to say that a the issuance of permits authorizing the incidental takings could potentially prosecutor’s sense of fairness and the taking of wildlife, it requires such transform average Americans into Constitution would prevent a successful permits to be issued by ‘‘regulation.’’ criminals. The text, history, and . . . prosecution for some of the See 16 U.S.C. 703(a) (‘‘Unless and purpose of the MBTA demonstrate activities seemingly embraced within except as permitted by regulations made instead that it is a law limited in the sweeping statutory definitions.’’ as hereinafter provided . . . .’’ relevant part to actions, such as hunting Baggett v. Bullitt, 377 U.S. 360, 373 (emphasis added)). No regulations have and poaching, that reduce migratory (1964); see also Mahler, 927 F. Supp. been issued to create a permit scheme birds and their nests and eggs to human 1582 (‘‘Such trust in prosecutorial to authorize incidental take, so most control by killing or capturing. Even discretion is not really an answer to the potential violators have no formal assuming that the text could be subject issue of statutory construction’’ in mechanism to ensure that their actions to multiple interpretations, courts and interpreting the MBTA.). For broad comply with the law. There are agencies are to avoid interpreting statutes that may be applied to voluntary Service guidelines issued for ambiguous laws in ways that raise seemingly minor or absurd situations, different industries that recommend constitutional doubts if alternative ‘‘[i]t is no answer to say that the statute best practices to avoid incidental take of interpretations are available. would not be applied in such a case.’’ protected birds; however, these Interpreting the MBTA to criminalize Keyishian v. Bd. of Regents, 385 U.S. guidelines provide only limited incidental takings raises potential due 589, 599 (1967). protection to potential violators and do process concerns. Based upon the text, Recognizing the challenge posed by not constitute a regulatory authorization history, and purpose of the MBTA, and relying upon prosecutorial discretion, or result in the issuance of permits. consistent with decisions in the Courts the FMC court sought to avoid absurd In the absence of a permit issued of Appeals for the Fifth, Eighth, and results by limiting its holding to pursuant to Departmental regulation, it Ninth circuits, there is an alternative ‘‘extrahazardous activities.’’ FMC, 572 is not clear that the Service has any interpretation that avoids these F.2d at 907. The term ‘‘extrahazardous authority under the MBTA to require concerns. Therefore, the Service activities’’ is not found anywhere in the minimizing or mitigating actions that concludes that the scope of the MBTA statute and is not defined by either the balance the environmental harm from does not include incidental take. court or the Service. See Mahler, 927 F. the taking of migratory birds with other Supp. at 1583 n.9 (noting that the FMC societal goals, such as the production of Policy Analysis of Incidental Take court’s ‘‘limiting principle . . . of strict wind or solar energy. Accordingly, the Under the MBTA liability for hazardous commercial guidelines do not provide enforceable As detailed above, the Service has activity . . . ha[s] no apparent basis in legal protections for people and determined that the MBTA’s the statute itself or in the prior history businesses who abide by their terms. To prohibitions on pursuing, hunting, of the MBTA’s application since its wit, the guidelines themselves state, ‘‘it taking, capturing, killing, or attempting enactment’’); cf. United States v. is not possible to absolve individuals or to do the same apply only to actions Rollins, 706 F. Supp. 742, 744–45 (D. companies’’ from liability under the directed at migratory birds, their nests, Idaho 1989) (‘‘The statute itself does not MBTA. Rather, the guidelines are or their eggs is compelled as a matter of state that poisoning of migratory birds explicit that the Service may only law. In addition, even if such a by pesticide constitutes a criminal consider full compliance in exercising conclusion is not legally compelled, the violation. Such specificity would not its discretion whether to refer an Service proposes to adopt it as a matter have been difficult to draft into the individual or company to the of policy. statute’’). Thus, it is unclear what Department of Justice for prosecution. The Service’s approach to incidental activities are ‘‘extrahazardous.’’ In FMC, See, e.g., U.S. Fish and Wildlife Service, take prior to 2017 was implemented the concept was applied to the Land-Based Wind Energy Guidelines 6 without public input and has resulted in manufacture of ‘‘toxic chemicals,’’ i.e., (Mar. 23, 2012). regulatory uncertainty and

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inconsistency. Prosecutions for Newton County Wildlife Ass’n v. U.S. clarifying that injury to or mortality of incidental take occurred in the 1970s Forest Serv., 113 F.3d 110 (8th Cir. migratory birds that results from, but is without any accompanying change in 1997); Seattle Audubon Soc’y v. Evans, not the purpose of, an action (i.e., either the underlying statute or Service 952 F.2d 297 (9th Cir. 1991); Mahler v. incidental taking or killing) is not regulations. Accordingly, an U.S. Forest Serv., 927 F. Supp. 1559 prohibited by the Migratory Bird Treaty interpretation with broad implications (S.D. Ind. 1996); Curry v. U.S. Forest Act. for the American public was implicitly Serv., 988 F. Supp. 541, 549 (W.D. Pa. Public Comments adopted without public debate. 1997). Subsequently, the Service has sought to As a result of these cases, the Federal On February 3, 2020, the Service limit the potential reach of MBTA Government is clearly prohibited from published in the Federal Register (85 liability by pursuing enforcement enforcing an incidental take prohibition FR 5915) a proposed rule to define the proceedings only against persons who in the Fifth Circuit. In the Eighth scope of the MBTA as it applies to fail to take what the Service considers Circuit, the Federal Government has conduct resulting in the injury or death ‘‘reasonable’’ precautions against previously sought to distinguish court of of migratory birds protected by the Act. foreseeable risks. appeals rulings limiting the scope of the We solicited public comments on the Based upon the Service’s analysis of MBTA to the habitat-destruction proposed rule for 45 days, ending on manmade threats to migratory birds and context. See generally Apollo Energies, March 19, 2020. We received 8,398 the Service’s own enforcement history, 611 F.3d at 686 (distinguishing the comments. Many comments included common activities such as owning and Eighth Circuit decision in Newton additional attachments (e.g., scanned operating a power line, wind farm, or County on the grounds that it involved letters, photographs, and supporting drilling operation pose an inherent risk logging that modified a bird’s habitat in documents). These comments of incidental take. An expansive reading some way). However, that argument was represented the views of multiple State of the MBTA that includes an rejected by a subsequent district court. and local government agencies, private incidental-take prohibition would See United States v. Brigham Oil & Gas, industries, non-governmental subject those who engage in these L.P., 840 F. Supp. 2d 1202 (D.N.D. organizations (NGOs), and private common, and necessary, activities to 2012). Likewise, the Federal citizens. In addition to the individual criminal liability. Government has sought to distinguish comments received, 10 organizations This approach effectively leaves holdings in the habitat-destruction submitted attachments representing otherwise lawful and often necessary context in the Ninth Circuit. See United individuals’ comments, form letters, and businesses to take their chances and States v. Moon Lake Electrical Ass’n, 45 signatories to petition-like letters hope they avoid prosecution, not F. Supp. 2d 1070, 1075–76 (D. Colo. representing almost 180,000 signers. because their conduct is or even can be 1999) (suggesting that the Ninth The following text presents the in strict compliance with the law, but Circuit’s ruling in Seattle Audubon may substantive comments we received and because the government has chosen to be limited to habitat modification or responses to them. forgo prosecution. Otherwise-lawful destruction). In the Second and Tenth Comment: Multiple commenters economic activity should not be Circuits, the Federal Government can noted that Congress has amended the functionally dependent upon the ad hoc apply the MBTA to incidental take, MBTA in multiple instances (i.e., exercise of enforcement discretion. albeit with differing judicial limitations. narrowing scope of strict liability, Further, as a practical matter, These cases demonstrate the potential adding knowledge requirement to felony inconsistency and uncertainty are built for a convoluted patchwork of legal violation, narrowly exempting certain into the MBTA enforcement regime by standards; all purporting to apply the activities from incidental take, etc.). The virtue of a split between Federal Circuit same underlying law. The MBTA is a commenters noted that Congress could Courts of Appeals. Courts have adopted national law. Many of the companies have clarified any objection to the different views on whether section 2 of and projects that face potential liability enforcement of incidental take but did the MBTA prohibits incidental take, under the MBTA operate across not. The commenters suggested that and, if so, to what extent. Courts of boundary lines for judicial circuits. Yet these later congressional interpretations Appeals in the Second and Tenth what is legal in the Fifth and Eighth should be given great weight and that Circuits, as well as district courts in at Circuits may become illegal as soon as failure to include incidental take within least the Ninth and District of Columbia an operator crosses State lines into the the scope of the statute would virtually Circuits, have held that the MBTA bordering Tenth Circuit or become a nullify these amendments. Congress criminalizes some instances of matter of uncertainty in the Ninth specifically demonstrated its familiarity incidental take, generally with some Circuit. The Service concludes that it is with the development of take liability in form of limiting construction. See in its own interest, as well as that of the 1998 when it tackled the ‘‘unfairness’’ of United States v. FMC Corporation, 572 public, to have and apply a national strict liability in baiting cases. Rather F.2d 902 (2d Cir. 1978); United States v. standard that sets a clear, articulable than strict liability, the MBTA would Apollo Energies, Inc., 611 F.3d 679 rule for when an operator crosses the apply a negligence standard to hunters (10th Cir. 2010); United States v. Corbin line into criminality. The most effective who used fields with loose grain. In Farm Serv., 444 F. Supp. 510 (E.D. Cal. way to reduce uncertainty and have a making this change, the Senate Report 1978); Ctr. for Biological Diversity v. truly national standard is for the Service noted that the amendment was ‘‘not Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002), to codify and apply a uniform intended in any way to reflect upon the vacated on other grounds sub nom. Ctr. interpretation of the MBTA that its general application of strict liability for Biological Diversity v. England, 2003 prohibitions do not apply to incidental under the MBTA.’’ App. LEXIS 1110 (D.C. Cir. 2003). By take, based upon the Fifth Circuit’s Response: The operative language contrast, Courts of Appeals in the Fifth, ruling in CITGO Petroleum Corporation. originally enacted in section 2 of the Eighth, and Ninth Circuits, as well as Therefore, as a matter of both law and MBTA has not substantively changed district courts in the Third and Seventh policy, the Service adopts a regulation since 1936. The 1936 amendment Circuits, have indicated that it does not. limiting the scope of the MBTA to modified the language to clarify its See United States v. CITGO Petroleum actions that are directed at migratory meaning and application, but there is no Corp., 801 F.3d 477 (5th Cir. 2015); birds, their nests, or their eggs, and indication those changes were intended

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to broaden the scope of the statute Response: As explained by the Fifth intent to prepare an EIS but without any beyond actions directed at migratory Circuit in the CITGO case, the 2003 concurrent environmental analysis of birds. The subsequent amendments Authorization Act does not require the alternatives. This approach have instead fine-tuned the mens rea conclusion that Congress interpreted the compromised the ability of commenters required for violations directed at MBTA to apply broadly to incidental reviewing the proposed rule to migratory birds, including commercial take. Congress was simply acting to understand fully the effects of the rule. use, hunting, and baiting. Interpreting preempt application of a judicial Further, the subsequent publication and the statute to reach only actions directed decision that specifically and comment period on the draft EIS was at migratory birds would not nullify immediately restricted military- after-the-fact, indicating a decision was these amendments. The 1960 readiness activities. Imputing already made regardless of the amendment was enacted prior to the Congressional intent beyond the plain environmental consequences initial prosecutions for take by text of a narrow appropriation provision determined in the EIS. In addition, industrial activities at a time when is not warranted. We do not interpret commenters noted that the 45-day Congress had no reason to believe the that action as Congress clearly speaking comment period was inadequate for a MBTA could potentially reach beyond to the broad issue of the overall scope rule that proposes to substantially hunting and commercial use of birds. of the statute as it applies to incidental change decades of conservation policy The 1988 amendment was, as noted, take. Congress may simply have chosen and hinder bird conservation in the simply a reaction to a court decision to address a discrete problem without United States, given the current that added a negligence standard for any intent to interpret more broadly the National State of Emergency in response baiting violations. As noted in the M- MBTA outside of that particular context. to the novel Covid–19 coronavirus. Opinion, nothing in the referenced In any event, the views of the 2003 Many of these commenters requested an amendments disturbs Congress’s Congress in a rider to an appropriation extended comment period. original intent that section 2 apply only act that did not even explicitly amend Response: The procedures followed in to actions directed at migratory birds. any of the MBTA’s language have little this rulemaking process were Moreover, the views of one Congress if any significance to interpreting the appropriate and lawful. A draft EIS, regarding the construction of a statute MBTA. issued subsequent to the proposed rule, adopted many years before by another Comment: The proposed rule analyzed various alternatives, some of Congress are typically given little to no contained no information on the which were discussed in the public weight, particularly where, as here, the consequences of the action on migratory webinars conducted as part of the NEPA amendments did not disturb the birds and the environment as a whole scoping process. One alternative in the operative language governing the scope (through decreased ecosystem services). draft EIS covers the expected effects of of that statute. The commenter went on to note that reverting to the Department’s prior there is no evidence presented as to the interpretation of the statute. There is no Comment: Several commenters economic burden for implementing requirement under the Administrative concluded that the Department of voluntary best management practices. Procedure Act (APA) to consider Defense Authorization Act for Fiscal Response: Per the National alternatives in the proposed rule itself Year 2003 demonstrates that Congress Environmental Policy Act (NEPA), the (Executive Order 12866 requires intended the MBTA to prohibit Service analyzed the impacts mentioned consideration of alternatives that would incidental take of migratory birds by the commenter within the draft have less economic impact on regulated because it directed FWS and the Environmental Impact Statement (EIS) entities for economically significant Department of Defense to develop a published June 5, 2020. Within the EIS, rulemakings, as set forth in the regulation authorizing incidental take of the Service analyzed impacts of the no regulatory impact analysis made migratory birds during military action alternative and two additional available for review with the proposed readiness activities. Congress enacted alternatives on (1) The overall effect of rule). The NEPA process provides a the relevant provision in the wake of a each alternative on migratory bird broad analysis of the environmental and case in which the court enjoined populations, (2) the effect of any socioeconomic impacts of reasonable specific U.S. Navy live-fire training decrease in migratory bird populations alternatives to the agency’s proposal. exercises that incidentally killed on ecosystem services, (3) the potential The 45-day period for commenting on migratory birds. The commenters effects of climate change in combination the proposed rule and NEPA scoping reasoned that Congress could have of each alternative, and (4) the impacts process, along with the subsequent 45- directed the Service to issue MBTA to industry and small business that may day comment period for the draft EIS, regulations that achieved the same profit from migratory birds. The Service provided sufficient time for the public result as this rulemaking action by also asked for and provided discussion to address this rulemaking. Moreover, limiting the MBTA to direct actions on what extent industry would continue the M-Opinion, which provided the against migratory birds. Alternatively, to implement best practices when there original basis for this rulemaking, has Congress could have amended the is no incentive to do so. This EIS was been publicly available for more than 2 MBTA itself to clarify that it did not open for public comments, and years. apply to incidental takes and kills. comments focused on these analyses are Comment: Members of the U.S. Senate However, Congress did not do either of addressed within the final EIS. We have commented that the Department closed those things; instead, it temporarily added additional discussion in the final the comment period on the proposed exempted incidental taking caused by EIS and Regulatory Impact Analysis rule in mid-March during the height of military-readiness activities from the regarding the types of practices and a pandemic, ignoring requests from MBTA prohibition and directed the types of costs associated with best some in Congress to extend the Service to issue MBTA regulations to practices. comment deadline, and without even create a permanent authorization for Comment: Multiple commenters responding to Congress until after the military-readiness activities. Thus, noted that the process being used for deadline ended. Since then, some of the Congress spoke clearly to the matter of this rulemaking is unconventional. The Nation’s governors, State legislatures, whether the MBTA scope includes commenters noted that the proposed and mayors jointly requested a incidental takes and kills. rule was published with a notice of suspension of public comment periods

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during this national emergency. The notice, the proposed rulemaking, and with sufficient flexibility to incorporate Department should not be putting the publication of the draft EIS. the alternatives analyzed in the draft additional burdens on the public to Comment: One State expressed EIS. The NEPA process informed our respond at a time when the public is concern with the Service’s attempt to decision-making process culminating in dealing with a global pandemic. The alter its previous interpretation of the this final rule. Department appears to be rushing MBTA (M–37041) in the absence of Comment: The Service cannot through this entire process to meet an review pursuant to NEPA. Therefore, conduct a credible NEPA process based arbitrary timeline. At the very least, the the State requested that the short- and on the timeline and chronology it has Department should not be providing the long-term impacts of the proposed rule presented at this point. Completing the minimum comment period. Rather, it change be fully and accurately entire NEPA process and reaching a should extend that comment period by evaluated in the EIS, and that there be final record of decision (ROD) and final 45 days or more. at least a 60-day comment period after rule by fall of 2020 is an extraordinarily Response: The procedures followed in the draft EIS is published in order to short timeline of less than 10 months to this rulemaking process were facilitate a thorough public review. In proceed from initial scoping to final appropriate and lawful. The Department the Service’s evaluation of those rule. It is difficult to imagine any provided 45-day comment periods on impacts, it is critical to compare the scenario under which the Federal both the NEPA scoping process and the proposed rule’s impacts with the prior agencies could review and give serious draft EIS and a separate 45-day interpretation of the MBTA represented consideration to the comments it will comment period on the proposed rule. in M–37041, which concluded that the receive on this proposed rule, let alone These three separate 45-day periods MBTA prohibits incidental take. incorporate them into a final EIS, ROD, provided sufficient time for the public Response: The Service has fulfilled and final rule. to address this rulemaking. Moreover, the commenter’s request through the Response: The Service has complied the M-Opinion, which provided the publication of a draft EIS, which with the procedural requirements of original basis for this rulemaking, has analyzed a no action alternative and two NEPA for developing an EIS by been publicly available for more than 2 action alternatives. One of the publishing a scoping notice and a draft years. alternatives reverts to the prior EIS inviting public comment before interpretation of the MBTA described in developing a final EIS and record of Comment: Multiple commenters Solicitor’s Opinion M–37041. In the decision. The Service provided noted that NEPA requires that decisions draft EIS, we compared the impacts of alternatives to the proposed action and be analyzed in a public process before codifying M–37050 with returning to has not predetermined any outcome of an agency irretrievably commits its the prior Opinion’s interpretation. We the NEPA process. The Service will take resources. Specifically, an agency ‘‘shall established 45 days as an appropriate a reasonable amount of time to address commence preparation of an [EIS] as period for public comment on the draft and incorporate comments as necessary, close as possible to the time the agency EIS. We concluded a 45-day comment deliberate on a final determination, and is developing or is presented with a period was reasonable given the prior select an alternative presented in the proposal.’’ The DOI should suspend M- opportunity to comment on the scoping final EIS. We will explain that selection Opinion 37050 while the Service notice published on February 3, 2020 in a record of decision at the considers the environmental impacts as (85 FR 5913), and during the associated appropriate time. required by NEPA. public hearings, which invited input on Comment: Multiple commenters felt Response: The Service began the the environmental effects of the the manner in which this proposed NEPA process at the appropriate time— proposed action and the potential rulemaking was announced on January when it first considered rulemaking alternatives we should consider. 30, 2020, by the Service’s Office of regarding the interpretation of the Comment: Multiple commenters were Public Affairs was improper and a MBTA originally set forth in M–37050. concerned about the unorthodox violation of the APA (Pub. L. 79–404, 60 The Service drafted the proposed rule approach of simultaneously publishing Stat. 237). They asserted that the with sufficient flexibility to incorporate a draft rule and a NEPA scoping inclusion of 28 statements of support for the alternatives analyzed in the draft announcement and seeking comments this proposed rule within the EIS. The NEPA process informed our on both at the same time. The rulemaking announcement establishes a decision-making process culminating in commenters felt this approach strongly record of pre-decisional collusion with this final rule. suggests that the Service had already certain interest groups by a regulatory Comment: The Flyway Councils noted reached a conclusion about the outcome agency that has tainted the entire that the proposed rule was brought forth of this process and that the NEPA rulemaking process and clouded the without the proper procedures as process is nothing more than a ultimate decision the Service will be outlined by NEPA and the APA. The formality. Under the normal NEPA EIS called upon to make, once the comment Flyways noted that there was no process, Federal agencies would period closes and all public testimony is advance notice of rulemaking to assess conduct scoping of an issue, develop fairly and impartially evaluated. the implications of the proposed rule. In multiple action alternatives, put those Response: The Service did not collude addition, the Flyways noted that no alternatives out for public notice and with any stakeholders, industry or alternatives were put forth and there comment, and ultimately select an otherwise, on the contents of the was no opportunity to propose other alternative to advance. In this case, the proposed rule before it was published in alternatives. Service appears at the scoping phase to the Federal Register. No organizations Response: The Service announced the have already selected the outcome it or persons outside of the Federal scoping process in a notice of intent intended to reach. Government were given an advance (NOI) to complete an EIS in the Federal Response: The Service began the copy of the proposed rule to read before Register on February 3, 2020 (85 FR NEPA process at the appropriate time— it was published in the Federal 5913). An advanced notice of proposed when it first considered rulemaking Register. Interagency review limited to rulemaking is not required. The Service regarding the interpretation of the Federal agencies occurred prior to has provided three opportunities to MBTA originally set forth in M–37050. issuance of the proposed rule under submit comments through the scoping The Service drafted the proposed rule procedures required by Executive Order

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12866 and implemented by the Office of MBTA prohibits incidental take. See conduct that incidentally results in the Management and Budget. The Natural Res. Defense Council v. U.S. death of migratory birds. announcement of the proposed rule was Dep’t of the Interior, 2020 WL 4605235 Comment: The original legislative primarily a notification to the public (S.D.N.Y.). We respectfully disagree intent of the MBTA was the protection and the media summarizing the with that court’s opinion and have and sustainability of migratory bird contents of the proposed rule and its finalized this rulemaking consistent populations. The word ‘‘protection’’ availability for public comment, with with the Supreme Court’s holding in occurs in its first sentence. There has the viewpoints of several stakeholders Brand X. been no express delegation of law- included. It is not part of the official Comment: The proposed rule making duties or authority to amend the APA rulemaking process or docket and incorrectly concludes that the terms MBTA. The MBTA’s legislative intent is plays no part in the agency’s ultimate ‘‘kill’’ and ‘‘take’’ are ambiguous. Even to prevent needless losses, establish decision. The announcement was not if the terms were ambiguous, the closed seasons for hunting, prohibit the considered in developing this final rule. proposed rule’s attempt to meld all the taking of nests or eggs of migratory game Comment: If the press release prohibited conduct into a singular or insectivorous nongame birds except accepted quotes from industry and meaning is unsupported by any canon for scientific or propagating purposes, government entities, it should also have of statutory interpretation. The Service further establish longer closures for included quotes and perspectives from proposes that ‘‘kill’’ and ‘‘take’’ exclude certain species, and provide for the environmental NGOs or ornithologists unintentional actions as they are listed issuance of permits to address the to comply with APA fairness rules. among directed actions such as ‘‘hunt’’ killing of specified birds. Despite the Response: The referenced section was or ‘‘pursue.’’ Yet this construction phrase ‘‘incidental take’’ not appearing contained in a press release issued with renders the list meaningless, working in either the MBTA or implementing the publication of the proposed rule. It contrary to established norms of regulations, its protective statutory is not part of the rulemaking record, and interpretation—if ‘‘kill’’ were limited to intent remains clear, as shown by its we did not consider the statements ‘‘hunt’’ and ‘‘pursue,’’ then there would common and long-time use in included in the press release as official be no need to include ‘‘hunt’’ and Congressional hearings and public comments. The Service received ‘‘pursue’’ on the list. The statutory correspondence, and in inter- and intra- many responses during the public context of the MBTA would make little agency communications. Since its intent comment period for the proposed rule sense if it merely prohibited directed has not been amended by an act of from migratory bird experts and action such as hunting because its Congress, the agency charged by interested non-governmental purpose extends beyond conserving Congress with its administration does organizations. We analyzed those game birds. Its provisions protect non- not have the authority to restrict its comments, responded to any game and insectivorous birds that are meaning and intent. substantive issues presented, and Response: This rulemaking is based not—and have never been— amended the proposed rule where on the Department’s interpretation of intentionally pursued for game, appropriate based on those comments. ambiguous language in a statute the poaching, or trafficking. Comment: Multiple commenters Secretary is charged with implementing noted that the codification of the Response: We disagree with the and does not amend the language of the Solicitor’s M-Opinion 37050 is commenter’s interpretation of the MBTA. It does not require any premature as it has not been fully vetted MBTA. The preamble to the proposed delegation from Congress other than the or withstood legal challenges. These rule and this final rule provides a delegations to the Secretary already commenters recommended that the detailed analysis of the language of the included in the terms of the statute. The Service postpone any rulemaking statute and why the scope of the MBTA Service disagrees that this rulemaking regarding MBTA prohibitions of does not include incidental take, restricts the meaning and intent of the incidental take until the legal challenges including the best reading of the MBTA. The preamble to this rule to the M-Opinion currently pending in ambiguous terms ‘‘take’’ and ‘‘kill.’’ We explains our interpretation of the the United States District Court for the refer the commenter to that analysis, MBTA’s statutory language and Southern District of New York are which provides the basis for issuing this legislative history and why the resolved. Given the uncertain future of regulation. interpretation set forth by this rule is M-Opinion 37050 and accompanying Comment: The plain language of this consistent with and the best reading of legal vulnerability of the proposed rule, statute pertains to conduct directed at that language and history. Thus, we it would be prudent for the Service to species, and nowhere in the operative disagree with the commenter’s assertion put the proposed rulemaking on hold language does the law suggest an intent that this rule restricts or alters the until the courts have determined on the part of Congress to impose meaning or intent of the MBTA. whether the M-Opinion on which it is criminal liability for the incidental Comment: Although the MBTA was based withstands legal scrutiny. effects of otherwise lawful activities. written in large part to address the then- Response: There is no statutory or The scope of prohibited conduct covers largest threat to migratory birds— other legal requirement to wait for a actions, which require intent— hunters and poachers—the proposed Departmental legal opinion or any other ‘‘pursue,’’ ‘‘hunt,’’ and ‘‘capture’’ are all rule offers no evidence to show its agency opinion to be vetted in Federal actions directed at wildlife and cannot passage was intended to regulate only court before it can be codified as a be performed by accident. The terms the activities that threatened birds in regulation. In fact, agencies may codify ‘‘take’’ and ‘‘kill’’ are informed by the 1918. With ‘‘effective protection,’’ the interpretations struck down by courts context of the rest of the statute in drafters wanted to be able to revive and and have subsequent courts defer to and which they must be read, and by the sustain completely decimated uphold the later rulemaking. See Natl. legislative and historical record of the populations on behalf of the Americans Cable & Telecommunications Ass’n v. MBTA and other environmental laws. who recognized aesthetic, economic, Brand X internet Svcs., 545 U.S. 967 Response: We agree with the and recreational value in sustaining (2005). We note that on August 11, comment that the language of section 2 migratory bird populations. To impose a 2020, a district court vacated M–37050 of the MBTA pertains to conduct limit on the activities it could regulate and held that the plain language of the directed at migratory birds and not under the MBTA would be to ossify this

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broadly written protection into only difference is underscored by the recent alternative from further review because applying to activities that existed during Federal district court decision vacating the vast majority of Federal courts have the decade immediately following its the M-Opinion. The final EIS and concluded the MBTA’s misdemeanor passage. An intention found nowhere in Regulatory Impact Analysis analyze the provision is a strict liability crime—in its text, legislative history, or ecosystem services, such as insect other words, it has no minimum mens subsequent interpretation and consumption, provided by migratory rea requirement. Because the proposed implementation. birds. alternative would have established a Response: Congress’s primary concern Comment: Multiple commenters minimum mens rea of gross negligence when enacting the MBTA in 1918 was presented arguments that the Service before the Service could enforce the hunting, poaching, and commercial has misquoted the provisions of the statute’s misdemeanor provision, it overexploitation of migratory birds. It is MBTA and that the proposal does not would not be legally defensible. Thus, clear from the legislative history leading address the statutory authority in codifying the Service’s interpretation of up to the statute’s passage that Congress section 3 to authorize take of migratory the scope of the MBTA under a gross drafted language to address those birds that would otherwise violate the negligence standard would only serve to threats. To be sure, Congress may draft statute, which the commenters contend reduce legal certainty. statutory language to include potential is the source of the Secretary’s authority Comment: One commenter future concerns not readily predicted at to implement the statute. recommended that the Service prohibit the time of enactment, but there is no Response: This proposal does not incidental take that results from an indication that Congress intended the authorize the taking of migratory birds; extra-hazardous activity. The language of section 2 to encompass it defines the scope for when commenter felt that providing such a accidental or incidental deaths of authorizations under section 2 are take threshold would allow the Service migratory birds. Instead, the balance of necessary and proper. Thus, it does not to address incidental take that occurs the legislative history favors the rely on the statutory language presented because of an entity’s negligence. opposite interpretation as explained in by the commenter. The authority to Response: The proposed rule did not the preamble. implement a statute necessarily comes provide a threshold for prohibiting Comment: A letter from some with it the authority either to interpret incidental take because it proposed to members of the U.S. Senate stated that ambiguous language in that statute or to codify the interpretation set forth in M– the stakes of the proposed rule are correct a prior improper interpretation 37050 that the Act does not prohibit considerable, and like the legal opinion, of that statute. The authority in section incidental take in the first place. The it will have a significant detrimental 3 is also contingent on an understanding commenter is essentially proposing impact on migratory birds. This letter of what actions violate the statute in the adopting an extra-hazardous activity explained that birds provide first place. requirement as a proxy for negligence or tremendous value to our communities. Comment: Several commenters gross negligence. We decline to adopt Congress and the executive branch suggested that the proposed rule paints that proposal for the same reasons we understood this fact a century ago when a broad brush over incidental takes, rejected application of a gross- it signed the 1916 treaty and passed the treating all equally and absolving even negligence standard. MBTA, even in the midst of World War grossly negligent behavior that can Comment: One commenter I. Congress also recognized that birds result in the large-scale death of birds. recommended following a Safe Harbor benefit American agriculture and The commenters suggested that the approach for industry that participates forestry through the consumption of Service modify the proposed rule to in avoidance, minimization, and vast numbers of insect pests. This fact include a provision where incidental mitigation measures. remains true today and takes on new take resulting from reckless negligent Response: This approach would be importance with the spread of invasive behavior is considered a violation (i.e., very similar to establishing a policy to species and outbreaks. The proposed gross negligence). This approach would decline enforcement except in cases of rule contravenes the text and purpose of include creating a definition of ‘‘extra- gross negligence. We decline to adopt the MBTA and fails to align with the hazardous activities’’ and enforcing this proposal for the same reasons we purpose of our migratory bird treaties incidental take when it results from rejected application of a gross- and our international obligations. The gross negligence. The commenters negligence standard. rule also presents a false choice between conclude that the Service should focus Comment: Multiple commenters felt regulatory certainty and implementing enforcement of incidental take on large- that the MBTA needed to be amended the MBTA. scale, high-mortality, and predictable by Congress to make the changes being Response: This rulemaking does not situations where unintentional loss of proposed in this regulation. present a false choice between migratory birds is likely to occur, based Response: The commenters are correct regulatory certainty and implementing on the best scientific information. The that only Congress can amend the the MBTA. M–37050 concluded that the language of the act needs to be changed language of the MBTA. The Service is MBTA does not prohibit incidental take. to protect those who injure birds on a charged with implementing the statute This rulemaking codifies that purely accidental basis. However, there as written. The Department’s Principal interpretation; thus, the Service has needs to be language that allows for the Deputy Solicitor, exercising the ultimately determined that developing a prosecution of individuals who are authority of the Solicitor pursuant to framework to authorize incidental take grossly negligent. Secretary’s Order 3345, determined in is not an action that is consistent with Response: During scoping for the M–37050 that the statute as written does the statute. The Service notes that a associated EIS, we considered an not prohibit incidental take. We are Federal regulation applies across all alternative where the Service would codifying that interpretation in this agencies of the Federal Government and promulgate a regulation defining what rulemaking. Thus, we are simply provides a more permanent standard constitutes incidental take of migratory interpreting the existing language and that the public and regulated entities birds and develop an enforcement not amending the statute or altering can rely on for the foreseeable future, in policy requiring gross negligence to statutory language in this regulation. contrast to continued implementation of establish a misdemeanor violation of the Comment: One commenter suggested the MBTA under a legal opinion. This MBTA. The Service eliminated this amending the proposed regulatory

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language by adding: ‘‘provided that the mechanism that the Service can apply to Response: The Service appreciates the person, association, partnership, or require actions that avoid or minimize perspective of the entities that support corporation takes reasonably practicable incidental take that is otherwise this rulemaking. precautionary measures to prevent the preventable. Comment: Multiple commenters taking or killing of migratory birds. Response: The Service does not agree supported the proposal because, in their Owing to the diversity in operations of that the MBTA is the only mechanism view, criminalizing incidental take does the various industries affected by this to achieve bird conservation. The not advance conservation and other rule, USFW shall develop industry Service is committed to working with mechanisms could be used to protect specific guidelines for developing those that voluntarily seek to reduce birds. precautionary measures to prevent the their project-related impacts to Response: The Service agrees with taking or killing of migratory birds.’’ migratory birds. In addition to the this comment. We will continue to work Response: The language proposed by MBTA, other Federal and State laws with any entity that seeks to reduce the commenter is not consistent with protect birds and require specific their impacts to migratory birds to our interpretation of the MBTA. The actions to reduce project-related achieve conservation outcomes. proposal would essentially be adding impacts. Comment: One commenter asked who language to the MBTA given our Comment: Multiple commenters would be financially responsible to interpretation that it does not prohibit opposed the proposed rule because, as mitigate and/or reverse the effects of an incidental take. We have no authority to written, the rule does not hold entities environmental disaster on a large or amend the statutory language or add accountable for causing the incidental small scale, to prevent any further provisions that simply are not there. take of migratory birds. incidental takes of birds or their eggs Thus, we respectfully decline to adopt Response: Our interpretation set forth once the disaster is under way. The the commenter’s proposed language. in the proposed rule is that take commenter noted that under the prior Comment: Multiple commenters incidental to the purpose of the action interpretation of the MBTA, the party opposed the proposed action because is not prohibited under the MBTA. We causing the disaster was clearly held recent studies have demonstrated that will not hold entities accountable for liable and financially responsible. North American bird populations are take that does not violate the MBTA. Under the new interpretation, this is no facing significant population declines. The Service will continue to manage longer the case. The commenter asked Birds have economic and ecosystem and enforce the provisions of the MBTA whether the Service will be establishing services value, and, if birds continue to as they relate to activities directed at a fund to step in for cleanup and decline, the economy and ecosystems migratory birds, including ensuring incidental take mitigation when will be compromised. The commenters those holding take permits are environmental mishaps occur. If not, called for more protections and see the accountable for complying with these where does the Service anticipate such proposed rule as weakening actions for permits. needed funds will originate? the conservation of migratory birds. Comment: Some commenters Response: The proposed rule does not Response: The Service is aware of the suggested that the interpretation of the directly affect Natural Resource Damage recent science that demonstrates that MBTA set forth in the proposed rule is assessments for accidents that have North America has lost nearly 3 billion flawed and does not account for the environmental impacts because birds over the last 50 years. However, mission of the Department and the statutory authorities that provide the the proposed action is based on a legal Service. basis for that program do not rely on the interpretation of the MBTA. It is also Response: The enforcement of the MBTA. Pursuant to the Comprehensive noteworthy that those losses occurred MBTA is just one part of how the Environmental Response Compensation despite the Department’s prior Service works with others to conserve and Liability Act, the Oil Pollution Act, interpretation of the MBTA as migratory birds. We have found that and the Clean Water Act, the prohibiting incidental take. The Service building partnerships domestically and Department is authorized to assess is a conservation organization and will internationally to build strategies for injury to natural resources caused by continue to address bird-conservation implementing measures that protect, releases of hazardous substances and priorities in a manner that provides for manage, and conserve migratory birds is discharges of oil to compensate the the most effective conservation of a more effective conservation tool than public for lost natural resources and protected species, such as working with enforcing incidental take under the their services. The Department’s domestic and international partners to MBTA on a piecemeal basis with our assessment of natural resource injuries conserve habitat and habitat limited law enforcement resources. A under the Natural Resource Damage connectivity, addressing threats both few examples of our partnership work Assessment Program includes any anthropogenic and natural, developing include: (1) Managing and injury to migratory birds, which in partnerships with Federal, State, and implementing grant programs under the many cases could otherwise be Tribal agencies, industry and NGOs that Neotropical Migratory Bird classified as incidental take. address the greatest conservation needs, Conservation Act and North American Comment: One commenter asked and effectively implementing the array Wetlands Conservation Act, (2) using whether any best management practices of Federal statutes that provide Joint Ventures to build regional would be required under any protections for migratory birds. For partnerships for habitat and species circumstances and how the proposed example, the Service will continue to conservation, and (3) working with rule affected both Executive Order work with any partner that is interested other Federal, State, and industry 13186: Responsibilities of Federal in reducing their impacts on birds by partners to develop voluntary solutions Agencies to Protect Migratory Birds and developing voluntary practices to for reducing impacts to migratory birds the implementation of the Land-based reduce mortality and providing and their habitat. Wind Energy Guidelines. technical assistance for effectively Comment: Multiple commenters Response: Best management practices implementing those practices. supported the proposed action because (BMPs) have never been required under Comment: Multiple commenters a clarification of the scope of the MBTA the MBTA, other than as part of our opposed the proposed rule because it was needed to avoid unnecessary occasional application of the special removes the MBTA as the only regulation of industry projects. purpose permit provision to authorize

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incidental take under certain Service explain in the preamble how monitor incidental mortality and the circumstances, as there has never been such action compounds or alleviates the stressors causing this mortality, as well a specific permit provision for findings of certain reports and other as to develop voluntary best practices authorizing incidental take that would available science and biological data— that industry sectors can implement require their implementation. The including but not limited to data from when they seek to reduce their project- Service has worked with project Partners in Flight, the State of the Birds level impacts on the environment. proponents to encourage the voluntary report, Christmas Bird Counts, Breeding Comment: One commenter focused on use of BMPs and used enforcement Bird Surveys, and project-level nesting impacts of wind energy and suggested discretion to determine when an and demographic information that the that the final rule should provide enforcement action was appropriate. Service has on file. language that terminates wind-energy Under the proposed rule, the Service Response: The Service acknowledges projects where the migratory bird will continue to work with and that birds are currently in decline. mortality levels are not remediable. The encourage the voluntary Numerous technical reports including commenter suggested that, without such implementation of BMPs when the the 2019 Science paper have highlighted thresholds, the MBTA will be rendered entity seeks to reduce their project- the declines in many habitat groups due meaningless. related impacts. E.O. 13186 remains in to numerous anthropogenic sources (see Response: Our interpretation of the place and is a valuable tool for Federal page 26). However, this rulemaking is MBTA concludes that the statute does agencies to work cooperatively to not expected to affect significantly those not prohibit incidental take, including implement bird conservation strategies continuing declines. The Service will any resulting from wind-energy within their agency missions. The Land- continue to work with partners to facilities. However, the Service will based Wind Energy Guidelines are a address migratory bird declines outside continue to work with any industry or voluntary approach to siting wind- of a regulatory context. entity that is interested in voluntarily Comment: One commenter in support energy facilities. This rule may reduce reducing their impacts on migratory of the proposed rule noted that there are the incentive for affected parties to birds to identify best practices that other statutes that protect birds, implement these guidelines. could reduce impacts. With respect to including NEPA; industry would still Comment: Several commenters stated the wind industry, the Service will have to comply with some of these laws that some estimates of bird mortality continue to encourage developers to and thus birds would benefit. There are used in the rule are more than a decade follow our Land-based Wind Energy also State and local laws that would old and out of date. In one of the Guidance developed through the comments, they referenced that the prevent the unnecessary killing of birds. collaboration of many different proposed rule cites 500,000 to 1,000,000 Response: The Service recognizes that stakeholders, including industrial and deaths per year at oil pits as old and there are numerous reasons why an environmental interests. high, suggesting that new technological entity would continue to implement Comment: Multiple commenters innovation and State regulations have best practices, including other Federal caused a decrease in oil pit mortality. or State laws, industry standard recommended that the Service abandon Response: The summary of mortality practices, public perception, etc. These the current proposed action and revert from anthropogenic sources was based mechanisms could reduce impacts to to the previous M-Opinion and the 2015 on the best scientific information birds in some circumstances. We note, MBTA proposal for developing and currently available. Often, monitoring of however, that NEPA does not provide implementing a general permit program industrial projects is not conducted, and substantive environmental protections that works with industry to identify best when it is, the Service rarely gets by itself. practices to avoid or minimize avian reports of the findings. The Service Comment: Multiple commenters mortality. The commenters noted that a recognizes that these estimates may recommended the Service clarify how well-designed general permit system represent both over- and under- the Service will continue to collect will also create efficiencies for industry estimates depending on the mortality project-level data on industrial impacts by removing regulatory uncertainty for source. Within our environmental to birds. There is concern from the developers and investors. Permit analysis of this rulemaking conducted commenters that the impact of this holders would have no risk of under NEPA, we acknowledge that other proposed rule will be a long-term loss prosecution provided they comply with Federal or State regulations may require of data and oversight of industrial the terms of the permit. Further, it will measures that reduce incidental take of impacts to avian species. discourage actors who fail to avoid, birds. In the proposed rule and the Response: Project-level information is minimize, or mitigate for the impacts of NEPA notice of intent, and during the still recorded when a project proponent their activities from gaming the system public scoping webinars, the Service engages the Service for technical and taking advantage of the Service’s requested that new information and data assistance. It is not required for projects limited prosecutorial resources. be provided to update our current to submit data on incidental take; Response: In the draft EIS, we information on sources and associated however, we encourage proponents considered an alternative under which magnitude of incidental take. The voluntarily to submit these data so that the Service would promulgate a Service did not receive any industry- we are able to track bird mortality. We regulation defining what constitutes related information for further note that even under the prior incidental take of migratory birds and consideration. If an industry sector has interpretation of the MBTA, there was subsequently establish a regulatory new or different information, we no general mechanism to provide for the general-permit framework. The Service encourage them to submit those data to collection of project-level data on eliminated that alternative from further the Service for review and impacts to avian species. When an consideration because developing a consideration. intentional take permit is issued, general-permit system would be a Comment: A few commenters stated conditions of that permit request any complex process and better suited to that the Department of the Interior’s information on incidental mortalities analysis in a separate, subsequent reinterpretation of the MBTA removed a that are discovered. The Service will proposal. Thus, we did not consider broad layer of protection to birds against continue to work to develop developing a general permit program as industrial harms and requested that the partnerships with industry sectors to suggested by the commenters.

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Comment: One commenter will have no effect on those species. We substantially as further declines in recommended imposing stricter also note that several Service programs migratory bird populations could result regulations along main migratory routes exist that are designed to conserve in additional management requirements where high concentrations of MBTA species that are candidates for ESA and protections for declining species, species are biologically vulnerable listing, such as Candidate Conservation including additional listings under State (including stopover areas along Agreements and the Prelisting endangered species protection laws migration routes, and core breeding/ Conservation Policy. implemented by State fish and wildlife wintering areas), especially for Regarding the future listing of agencies. This series of events would threatened or endangered species or migratory birds as threatened species, as lead to further restrictions and require Species of Conservation Concern. stated in the final rule rescinding the substantial resources to manage and Response: Given our interpretation of ‘‘blanket rules’’ for threatened species ensure conservation and recovery. This the MBTA, the commenter’s proposal is (84 FR 44753, August 27, 2019) and rulemaking may violate federalism not a viable option. This final rule restated here, our intention is to finalize rules, as States will be required to use defines the scope of the MBTA to species-specific section 4(d) rules their budgets to implement migratory exclude incidental take, thus incidental concurrently with final listing or bird protection actions, including take that occurs anywhere within the reclassification determinations. regulation development and permit United States and its territories is not an Finalizing a species-specific 4(d) rule systems. The limitation of State enforceable violation. This rule does not concurrent with a listing or protections to projects within State affect the prohibitions under the ESA, reclassification determination ensures borders, coupled with the absence of the and thus species listed under that that the species receives appropriate Service providing necessary leadership statute would continue to be covered by protections at the time it is added to the and coordination would severely hinder all the protections accorded listed list as a threatened species. migratory bird management and species under the ESA. The status of Comment: Multiple commenters recovery efforts nationwide. migratory bird populations in the areas noted that the effects of this rule on Response: This rule would not violate described by the commenter may be ESA-listed species must be seriously any laws or executive branch policy relevant in our decision to permit take scrutinized in an EIS as well as in regarding unfunded mandates. under the Service’s current permit section 7 consultation under the ESA. Unfunded mandates occur when system. The proposed rule will harm species Congress enacts Federal law that Comment: Multiple commenters that have already been listed as includes directives that must be carried noted that M-Opinion 37050 and the threatened and subject to broad ESA out by States and does not also provide proposed action will likely result in section 4(d) regulations. funding for the States to fulfill those increased mortality of migratory birds. Response: The effects of this rule have Federal requirements. This rule would Thus, in combination with the already been analyzed in the EIS accompanying alter the Service’s interpretation of the significant population declines of many this rulemaking. Under the ESA, we MBTA to exclude incidental take from species, the proposed rule will almost have determined that this rule regarding its scope. Thus, it removes what had certainly result in the need to increase the take of migratory birds will have no been a Federal requirement for States to the number of bird species listed under effect on ESA-listed species. This rule avoid engaging in or authorizing the Endangered Species Act (ESA) and does not alter consultation requirements activities that incidentally take increase the risk of extinction. The under the ESA for migratory bird migratory birds. This rule effectively commenters noted that such deleterious species also listed as endangered or removes that directive. State partners effects are a more than sufficient basis threatened species. Any likely impacts are critical to the conservation of to withdraw the proposed rule (and the of a Federal action on migratory bird migratory birds, and we encourage underlying Opinion). Given the species also listed under the ESA would States to continue to conserve and Service’s recent elimination in the ESA require consultation whether or not manage migratory bird species regulations of automatic take protection incidental take of that species is consistent with the MBTA and would be for threatened species (subject to the prohibited under the MBTA. Thus, this happy to engage with and assist our adoption of species-specific 4(d) proposed action would not have any State partners in their management and regulations), the proposed rule will have effect on those species. conservation of MBTA species. The extremely deleterious impacts going Comment: Commenters claimed that Service acknowledged in the EIS that forward as the Service increasingly lists the Service must examine the effect the this rule may result in incremental species as threatened without affording proposed rule would have on certain declines in bird populations as them any protections for incidental take ESA-listing decisions, such as a not- companies learn they are not required to under the ESA. These entirely warranted determination or 4(d) rule, implement best management practices foreseeable effects of the action which may have been determined with to decrease incidental take. Enforcement proposed by the Service must be the understanding that the MBTA actions have been few since the 2017 M- analyzed in formal section 7 incidental take protections would still Opinion, so it would be speculative to consultation under the ESA. apply. assert that this change in policy will Response: While it is possible that Response: The Service has not issued result in further significant population this rule could potentially be a any 4(d) rules or not-warranted declines. However, States may decide to contributing factor in the future ESA determinations with the understanding expend resources for conservation and listing of a migratory bird species, there that MBTA protections stemming from recovery of these species due to this is no requirement under section 7 to an interpretation that it prohibits rulemaking. address the potential effects of an action incidental take would still apply. Comment: How is the Service going to on a species that may hypothetically be Comment: Multiple States commented monitor bird populations to ensure that listed at some undetermined point in that the proposed rule would lead to this proposal does not lead to increased the future. Instead, section 7 requires an further declines in migratory bird population declines? If significant agency to analyze the effects of an populations. The States voiced concerns declines are noted, how will the Service action on currently listed or proposed- that this rule would increase their respond if declines are attributed to to-be-listed species. This rulemaking species-management burden incidental take? The commenter

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recommended including a clause to stop develop and implement best killing migratory birds, or availability of the implementation of this proposed management practices, the MBTA has standard industry practices. Some rule if populations are negatively provided a key incentive for adopting entities may continue to implement impacted by incidental take from common-sense practices that protect practices that reduce take for any of anthropogenic sources. birds. The commenters suggested that, these reasons or simply to reduce their Response: Monitoring bird without any legal obligations, industries perceived legal risk due to short- or populations is outside the scope of this no longer need to consider how their long-term uncertainty concerning future action. However, the Service continues activities may harm migratory birds or application of laws and regulations to work with the bird conservation take action to prevent any harm. Thus, governing take of migratory birds. community to identify, support, and it is unlikely that the Service’s Comment: One commenter stated that implement bird-monitoring programs. implementation of voluntary measures the removal of Federal authority to The Service is partner to multiple efforts will result in benefits to birds. regulate incidental take of migratory to track migratory bird populations (e.g., Response: There are many other birds could strongly affect offshore- Partners in Flight Landbird Plan, Avian factors that influence an entity’s wind siting and management decisions. Conservation Assessment Database, decision to implement measures that One of the most important ways to etc.). These efforts and partnerships are may protect migratory birds from minimize avian impacts from wind- not impacted by this rulemaking, and incidental take. In some cases, there are energy development and make it ‘‘bird- data will continue to drive the actions other Federal, State, Tribal, or local laws friendly’’ is to site projects properly and of the Service to protect migratory birds. and regulations that directly or implement measures to avoid impacts. The clause proposed by the commenter indirectly require actions to benefit or The commenter noted that many would be inconsistent with our otherwise reduce impacts on migratory stakeholders are engaged in identifying interpretation of the Act and would birds. Federal statutes such as the common-sense mitigation measures to essentially add a requirement to the Endangered Species Act and the Bald minimize remaining impacts from the MBTA. Only Congress can amend and Golden Eagle Protection Act require construction and operation of wind- statutory language. entities to take steps to reduce energy facilities. Without a Federal Comment: Multiple commenters incidental take and protect habitat, mechanism for incorporating suggested that compliance with the which may in turn benefit migratory consideration of incidental take of MBTA was not a burden to State and birds and other wildlife. Many other migratory birds into decision-making, it local governments and has Federal statutes include provisions that will be much more difficult to make straightforward and minimal impacts on require implementing agencies to assess informed decisions that benefit bird capital-improvement projects. The and mitigate potential environmental populations. commenters noted there is a successful impacts, including impacts to migratory Response: The Service works with history of the Federal, State, and local birds and their habitat. In addition, offshore-wind-energy companies and governments along with industry Federal agencies are required to Federal and State agencies responsible working in coordination to implement evaluate their impacts to the for regulating this industry. The Service measures to reduce impacts to migratory environment under NEPA. NEPA will continue to work to provide birds and that the proposed rule would compliance requires Federal entities to recommendations for voluntary dismantle the extraordinary and identify impacts to the environment measures and siting locations based on successful history of this cooperation. affected by a proposal, including sound science. Given the success of the MBTA to date, impacts to migratory birds and Comment: One commenter noted that the commenter felt the proposed action socioeconomic impacts if they are likely the MBTA has not been used against was unnecessary. to occur. NEPA also requires Federal many businesses in court because it has Response: This rulemaking codifies entities to assess potential mitigation of encouraged businesses to self-regulate, our interpretation of the MBTA as unavoidable adverse environmental to the benefit of people and birds alike, prohibiting only conduct directed at impacts, which may include analysis of as well as those businesses. This migratory birds. It should not be viewed project design or mitigation measures approach has long-term financial benefit as standing in the way of the successful that reduce potential impacts to as it focuses on prevention rather than actions the commenter notes. The migratory birds. reparations in the future. Service will continue to work with State Some States have statutes with Response: The Service has provided and local governments as well as procedural requirements similar to in the past and will continue to provide industry to implement voluntary those found in NEPA (e.g., California in the future technical assistance to measures to reduce impacts to migratory Environmental Quality Act) and a interested parties to implement birds. This rulemaking should increase variety of provisions regulating some measures to reduce negative effects on that cooperation and coordination by form of incidental, indirect, or migratory birds. removing the specter of a potential accidental take, or potentially allowing Comment: One commenter suggested criminal prosecution, which has often commissions or agencies to make that in some cases incidental take by acted as a deterrent for private parties to applicable rules. In 2019, in response to industry should be considered share information with the Service on M-Opinion 37050, California passed the purposeful since some of this mortality their impact on migratory birds and Migratory Bird Protection Act, which is well studied, predictable, and there work with the Service on conserving makes it unlawful to take or possess any are easy low-cost mitigation options migratory bird species. Economic effects migratory nongame bird protected under available to reduce these takes. The on government entities are examined for the MBTA. Additional States may create commenter contended that entities that each alternative in the RIA. new regulations to clarify that they have choose not to implement known Comment: Multiple commenters jurisdiction to regulate or otherwise measures are purposefully taking noted that the proposed action removes oversee incidental take of migratory migratory birds. all incentives for industry to work with birds. Other factors entities consider Response: Incidental take refers to the Service. The commenters noted that include public perception, status as a mortality that occurs in the course of an through judicious enforcement and by green company, size of company, cost of activity that is not directed at birds and working directly with industries to implementation, perceived risk of often does not relate to birds in any

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way—for example, the intent of building this correct interpretation of the MBTA MBTA at that time, but we have since a wind turbine is generating energy not will reduce regulatory uncertainty changed our position as reflected by this killing birds. Though knowledge of the created by the prior agency practice of rulemaking. likely results of a suspect’s conduct may reliance on enforcement discretion, we Comment: Multiple commenters be relevant to determine whether a acknowledged in our draft EIS that stated that the rule sends a message to suspect has the requisite intent to different State laws may create industry that companies do not need to violate a criminal statute, it is not difficulties for national companies that implement even modest measures to relevant under the MBTA for two must navigate those differences. We also prevent entirely foreseeable bird reasons: First, because criminal note that this problem already exists in mortality. The commenters claimed that misdemeanor violations under the large part and do not expect this the rule communicates that for even the MBTA are a strict-liability crime, they rulemaking to significantly contribute to most egregious and demonstrably do not require proof of intent. Second, inconsistencies in State laws. We will deliberate violations, violators’ real- the MBTA only prohibits actions that continue to cooperate with States that world liability will still be limited by are directed at migratory birds. An request our assistance in developing Service funding, investigatory resources activity that causes incidental take will best management practices for various and expertise, and political will with never be directed at migratory birds industries that minimize incidental take respect to enforcement. In all three regardless of the actor’s knowledge of of migratory birds. In fact, such categories, the Service is presently ill the potential consequences. partnerships will likely become suited to fulfill the role envisioned by Comment: The analysis under the increasingly important to promote the proposed rule. To pretend otherwise Regulatory Flexibility Act shows likely conservation of migratory birds and lead ignores the agency’s own established minimal economic benefit to all of the to greater consistency in both practices and guidance and constitutes affected businesses. If anything, this conservation and regulation nationwide. another failure of the Federal finding argues that the proposed rule is Comment: One commenter stated that Government’s trust responsibilities. a solution in search of a problem. In the in an international forum the United Response: We disagree with the commenters’ experience the expenses of States agreed that the MBTA is a strict- commenters’ assertion that this rule taking measures to minimize incidental liability statute covering incidental take. signals that industry should not take are minor and even the fines are The commenter noted that in 1999, implement best management practices. minor to small businesses. This analysis several environmental groups from The Service continues to be willing and really shows that the benefits of the Mexico, Canada, and the United States able to work with any entity that is proposed rule are overblown and filed a submission under the North interested in developing and targeted to a few companies that just do American Agreement on Environmental implementing voluntary measures that not want to be regulated. Cooperation asserting that the United will avoid or minimize impacts to Response: The purpose of this action States was failing to enforce migratory birds. For example, the is to provide an official regulatory environmental laws, including the Service is working proactively with both definition of the scope of the statute as MBTA. The United States disputed the the communication tower industry and it relates to incidental take of migratory allegations, but acknowledged that the with Federal agencies, cities, and other birds. This action is necessary to MBTA is a strict-liability statute municipalities to address tower and improve consistency in enforcement of covering incidental take, writing: glass collisions. The Service will the MBTA’s prohibitions across the ‘‘Under the MBTA, it is unlawful by any continue to investigate instances of country and inform the public, means or manner, to pursue, hunt, take, unauthorized taking or killing directed businesses, government agencies, and capture [or] kill any migratory birds at migratory birds. This rulemaking will other entities what is and is not except as permitted by regulation 16 not affect those investigations. prohibited under the MBTA. U.S.C. 703–704. Except for the baiting of Comment: A commenter noted that Comment: Multiple commenters game birds, the MBTA is a strict liability deaths of birds that are preventable and noted that the purpose and need of the statute that allows for the imposition of foreseeable are, in the context of the rule is to create legal certainty and that criminal penalties.’’ This is clear MBTA, negligent. Deliberate implies an this rulemaking removes a patchwork of evidence of the longstanding U.S. intentional act, where foreseeable means court decisions that create uncertainty position under international law, and in consequences that may be reasonably for MBTA compliance. The commenters agreement with its treaty partners, that anticipated. Nevertheless, the proposed noted that there is currently a the MBTA is a strict-liability statute rule attempts to parse the difference patchwork of legal standards that covering incidental take. The United between definitions of the terms protect migratory birds in each of the States must honor its obligations under ‘‘deliberate’’ and ‘‘foreseeable.’’ States. In the absence of national international law or change them Regardless of the scale and scope of protection against incidental take, each through an act of Congress. destruction, the rule proposes to make State may seek to enforce or embolden Response: The language cited by the deliberateness in the form of passive existing State rules, thereby creating commenter simply refers to the language negligence consequence-free. By additional regulatory uncertainty for of the MBTA and asserts that it is a specifying that entities should be held industry. The inconsistency among strict-liability statute. As described in liable only if they can be proven to have States in State code may complicate the preamble to this rulemaking, the set out to purposefully kill birds, the industry understanding of expectations Service continues to view the proposed rule flips the burden from across the many States in which they misdemeanor provision as a strict- regulated entities to the government. If operate, potentially requiring multiple liability crime consistent with the promulgated, the rule would force State permits to conduct business. majority of Federal courts that have Service employees to act as private Response: It is appropriate for ruled on the issue. Any statements made detectives with the nearly (and from all individual States to determine whether by the United States in prior appearances, deliberately) impossible and how to regulate incidental take of international meetings regarding task of proving what was in the hearts migratory birds, given that the MBTA whether the MBTA prohibits incidental and minds of violators. does not prohibit incidental take. take would have been consistent with Response: The rule does not attempt Although we conclude on balance that the Department’s interpretation of the to parse the difference between

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‘‘deliberate’’ and ‘‘foreseeable.’’ Those analysis includes comparing the effects alternatives include potential outcomes terms are not relevant to our of both interpretations. of the proposed rulemaking), and that interpretation of the MBTA. We Comment: A comment stated that an process will be complete before any currently authorize, and will continue agency charged with administering a final formal agency decision is made. A to authorize, various activities that statute cannot restrict, amend, repeal or draft EIS, issued subsequent to the directly take migratory birds through expand it without congressional proposed rule on June 5, 2020, analyzed our permit regulations at 50 CFR part approval. An agency has no authority to various alternatives, some of which 21. The Service’s Office of Law remove statutory protections without were discussed in the public webinars Enforcement will continue to investigate congressional approval. A rulemaking conducted as part of the NEPA scoping unauthorized taking and killing of cannot violate a statute or make it process. Those alternatives analyze the migratory birds resulting from actions inoperable and must be consistent with environmental effects of both directed at migratory birds. The the legislative intent of the law. The prohibiting incidental take under the rulemaking will not change those proposed rule impermissibly excludes MBTA and excluding incidental take investigations in any way or require our requirements of foreseeability and under the MBTA and gave the public officers to prove anything in addition to negligence by arguing that the statute opportunity to comment on those what they already would have to prove. only prohibits actions directed at birds effects. In some sense, actions directed at to exempt industries whose projects kill Comment: Multiple Tribes stated that migratory birds are deliberate in nature, birds incidentally. The proposed rule this proposed action violates multiple but the concept of foreseeability is not would largely make the statute Tribal-specific treaties, dating back to relevant. Regarding the commenter’s inoperable, thus violating its the mid-1800s. These treaties statements on enforcing a negligence congressional intent by removing its established the Federal Government’s standard, the misdemeanor provision of purpose. trust responsibility to Federally the MBTA contains no mental state Response: The preamble to this Recognized Tribes. The Federal Indian requirement and is a strict-liability rulemaking explains in detail our trust responsibility is a continuing crime. For this reason, we cannot interpretation of the language of the fiduciary duty and legal obligation owed introduce a mental-state requirement MBTA, including applicable legislative by the Federal Government to Tribes as such as negligence to the MBTA’s history and why our interpretation is beneficiaries. Under the trust misdemeanor provision. consistent with that history. Nothing in responsibility, the United States is Comment: Multiple commenters this rulemaking changes the language or legally responsible for the protection of noted issues with how the proposed purpose of the MBTA. Only Congress Tribal lands, assets, resources, and rule and associated NEPA document can enact or amend statutory language. treaty rights for the benefit of Tribes. define a ‘‘Federal action.’’ The The proposed rule uses the commonly Government-to-government consultation commenters noted that fundamental to understood definition of ‘‘incidental’’ is one facet of effectuation of the trust this rulemaking effort is to identify and does not purport to redefine that responsibility. Several Tribes stated that properly the major Federal action. Major term in any way. As stated on numerous they have no record of receiving any Federal actions include policy changes occasions throughout this rule, the communication or outreach from the like M-Opinion 37050. The commenters MBTA’s criminal misdemeanor Service or DOI regarding the proposed stated that the rule ignores the real provision is a strict-liability crime and regulation revisions or associated draft major Federal action and agency we have no authority to insert a mental EIS, much less an invitation to consult decision of greatest consequence: The state such as negligence into that on either. The Tribes recommended that Service’s reliance on Interior’s M- provision. That approach would require the rulemaking process be paused so Opinion 37050 to reverse course on congressional action. The MBTA will that intelligent and respectful decades of protections for migratory continue to operate as Congress consultation with any Tribe that birds against incidental take. The intended it to operate. The Service will expresses interest in response to the environmental consequences of the continue to implement the full suite of invitation to consult can proceed. underlying sweeping policy change, regulations authorizing conduct Response: The Service takes its Tribal which occurred in M-Opinion 37050, directed at migratory birds. trust responsibilities seriously and have yet to be held up to the mandates Comment: Multiple commenters completed government-to-government of NEPA. The commenters stated that, to suggest that the Service’s choice to consultation when requested. Prior to proceed in any defensible fashion, the release a proposed rule based on a the publication of the proposed rule, the agency must reckon with the policy change it is already Service held six public scoping consequence of adopting M-Opinion implementing, and conduct a NEPA webinars in March 2019, which were 37050 in the first place. analysis after-the-fact, turns NEPA on its open to any members of the public, Response: The EIS associated with head. This confused order of events also including members of Federal and State this rulemaking analyzes the difference hampers a fair public understanding of agencies, Tribes, non-governmental between adopting an interpretation of the agency’s proposed action, organizations, private industries, and the MBTA that excludes incidental take alternatives, and likely impacts. The American citizens. On March 16, 2020, and the prior interpretation that the agency in essence has already been the Service held a webinar that was MBTA prohibits incidental take. Thus, implementing the underlying policy restricted in attendance to allow only in our view, the M-Opinion was neither change that is reflected in the Tribal members to attend, with the sole final agency action nor major Federal rulemaking without the benefit of public purpose of informing Tribes of the action. It was simply the initial stage of review and comment at the time it made proposed action. Tribal representatives a process to alter agency practice to that policy change. were allowed to ask questions and seek conform to the correct reading of the Response: The procedures followed in clarifications. In addition, a letter was MBTA regarding incidental take. We this rulemaking process were sent through our regional offices to conducted the NEPA analysis at the appropriate and lawful. The Service invite Tribes to engage in this proposed appropriate time to analyze the engaged the NEPA process at the time action via the government-to- environmental effects of this rulemaking it began to consider rulemaking to government consultation process. Nine to codify that interpretation. That codify the M-Opinion (the reasonable Tribes requested government-to-

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government consultation. The Service our interpretation of the MBTA. Justice comply with the law.’’ 85 FR at 5922. completed these consultations prior to Gorsuch in Bostock was quite clear that According to the Service, this absence of publication of this final rule. legislative intent is only irrelevant if the regulations designed to address Comment: Contrary to the Service’s language of the statute is plain, as he incidental take, and the reliance instead position, the proposed definition of found the applicable language of the on discretionary enforcement, ‘‘has incidental take would not improve the Civil Rights Act to be. He noted that a resulted in regulatory uncertainty and implementation of the MBTA. This statute’s application may reach inconsistency,’’ thus necessitating a definition still requires law enforcement ‘‘ ‘beyond the principle evil’ legislators ‘‘truly national standard’’ and a to prove intent, which can be just as may have intended or expected to ‘‘uniform’’ approach to implementation difficult to prove, just as legally address,’’ Bostock, 140 S. Ct. 1731, of the MBTA. Id. at 5922–23; see also uncertain, and equally burdensome to 1749, but only where no ambiguity draft EIS at 3 (stating that the ‘‘purpose law enforcement. exists in the broadness of that statutory and need’’ for the action is to ‘‘improve Response: This rulemaking has no language. We do not rely on an consistency in enforcement of the effect on investigations into conduct argument that section 2’s application to MBTA’s prohibitions’’). This refusal to directed at migratory birds or the incidental take would demonstrate scrutinize an otherwise viable MBTA’s criminal felony and baiting ambiguity simply because Congress alternative that would further the provisions that require a specific mental could not have foreseen that application agency’s own purported objective—i.e., state. We will continue to interpret the in 1918. Instead, the language of increasing certainty and consistency in misdemeanor provision of the MBTA as MBTA’s section 2 is inherently enforcement—while also promoting the a strict-liability provision with no ambiguous in nature as it relates to conservation of migratory birds, mental-state requirement, including incidental take for the reasons stated in constitutes precisely the kind of intent. the preamble to this rulemaking and as arbitrary and capricious conduct that Comment: One commenter noted that evidenced by the split in Federal the Supreme Court denounced in its the recent Supreme Court ruling in appellate courts that have addressed the ruling on the DACA rescission. Bostock v. Clayton County, Georgia, 140 issue. Therefore, the Supreme Court’s Response: The Court’s holding in S. Ct. 1731 (2020), does not support this holding in Bostock does not apply here. Homeland Security does not apply to rulemaking. In Bostock v. Clayton Comment: The same commenter also this rulemaking because the Service has County, the Supreme Court relied on the noted that the recent Supreme Court considered the prior Departmental ‘‘ordinary’’ meaning of title VII of the ruling in Dep’t of Homeland Security v. interpretation and agency practice in Civil Rights Act of 1964, to hold that it Regents of the University of California, developing this rulemaking. Both the is unlawful to discriminate in 207 L. Ed. 2d 353 (2020), similarly does underlying M-Opinion and the employment decisions based on not support moving forward with this preamble to this rule analyzed the prior individuals’ sexual orientation. Id. at rulemaking. In Homeland Security, the interpretation and explained both why 1754. In reaching this result, the Court Supreme Court rejected the Trump it is incorrect and why it does not squarely rejected the argument that the Administration’s effort to rescind the provide the same level of certainty or Court’s reading of the statute’s Deferred Action for Childhood Arrivals consistency in enforcement. The EIS expansive terms ‘‘ignore[d] the (‘‘DACA’’) program, partly because the examined the impacts of this legislature’s purpose in enacting Title Department of Homeland Security rulemaking and specifically compared VII’’ and that ‘‘few in 1964 would have (‘‘DHS’’) had sought to justify its the environmental impacts of adopting expected Title VII to apply to rescission of the entire program on the each interpretation of the MBTA to discrimination against homosexual and basis that certain affirmative benefits inform the decisionmaker of the transgender persons.’’ Id. at 1745. The should not be extended to DACA consequences of adopting either Court reaffirmed the longstanding recipients while failing to consider the alternative. Thus, the Service principle that ‘‘ ‘the fact that [a statute] policy alternative of decoupling the scrutinized alternatives to the preferred has been applied in situations not extension of benefits from the deferral of action of codifying our interpretation expressly anticipated by Congress’ does deportation action. Id. at 375. The Court that the MBTA does not prohibit not demonstrate ambiguity, instead, it held that ‘‘when an agency rescinds a incidental take. simply ‘demonstrates [the] breadth’ of a prior policy its reasoned analysis must Comment: A commenter stated that legislative command.’’ Id. at 1749 consider the ‘alternative[s]’ that are the prosecution of incidental take under (citation omitted). The Supreme Court’s ‘within the ambit of the existing the MBTA does not violate due process. result and reasoning are impossible to [policy].’ ’’ Id. at 374, 375 (citation The Solicitor’s M-Opinion and the square with a central justification for the omitted). The Court held that this proposed rule cite due process concerns proposed rule and M-Opinion 37050 on ‘‘omission alone renders [the agency’s] as one justification for rolling back which it is based. According to the decision arbitrary and capricious.’’ Id. at critical protections for migratory birds proposed rule, Congress’s purpose in 375. under the MBTA. The commenter noted enacting the MBTA was to ‘‘regulate the The commenter stated that this ruling that as the Courts have advised, ‘‘where hunting of migratory birds,’’ and thus and analysis further undermine the an otherwise acceptable construction of the broad prohibitions on any taking or Service’s justification for reversing a statute would raise serious killing of migratory birds without course on many decades of prior policy constitutional problems, the Court will authorization from the Service should and practice in implementing the construe the statute to avoid such be construed so as not to encompass any MBTA. The Service has sought to justify problems unless such construction is taking or killing other than that the reversal on the grounds that, plainly contrary to the intent of specifically directed at migratory birds. ‘‘[w]hile the MBTA does contemplate Congress.’’ The commenter claimed the 85 FR at 5918, February 3, 2020. This, the issuance of permits authorizing the Service appears concerned that strict however, is exactly the mode of taking of wildlife . . . [n]o regulations liability for incidental takes of migratory statutory construction rebuffed by the have been issued to create a permit birds does not provide adequate notice Supreme Court in Bostock. scheme to authorize incidental take, so of what constitutes a violation and Response: The Supreme Court’s most potential violators have no formal would lead to absurd results. However, decision in Bostock is not applicable to mechanism to ensure that their actions the interpretation of the MBTA applying

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strict liability to the law’s criminal incidental take. The opposite would inform the rulemaking process and misdemeanor provision covering seem to be true. Regarding enforcement address Tribal concerns. We also sent a incidental take raises no constitutional of Federal law, the Department and the letter through our regional offices problems, nor is it contrary to the intent Service are obligated to interpret and inviting Tribes to engage in this of Congress. Rather, it is the only follow the law established by Congress. proposed action via the government-to- possible reading of the MBTA that This rulemaking will establish a firm government consultation process. Nine accomplishes its intended purpose. position on enforcement of the MBTA as Tribes and two Tribal councils Response: The commenter it applies to incidental take and will not requested government-to-government misconstrues our interpretation of the provide a moving target. The consultation. The Service has completed MBTA’s criminal misdemeanor commenter’s assertion would be better these consultations with all interested provision in section 6. We agree that applied to the Service’s prior exercise of parties. strict liability applies to misdemeanor enforcement discretion under the former Comment: One commenter suggested violations of the MBTA. The due interpretation, which left many that the proposed rule should be process concerns we raise in the regulated entities uncertain whether abandoned because the meanings of preamble to this regulation apply to the their conduct violated the MBTA and ‘‘take’’ and ‘‘kill’’ need to be given broad Department’s prior interpretation of would be investigated by the Service. A interpretations to achieve the remedial section 2 of the MBTA, rather than the primary reason for engaging in this purpose of protecting wildlife and criminal provisions of section 6. The rulemaking is to remove any uncertainty remain consistent with the common law Service determines the relevant in application of the statute to alleviate definitions of these terms. The language in section 2 to be ambiguous, precisely the concern voiced by this commenter stated that the Department which is consistent with the views of comment. and the Service misinterprets the Fifth most Federal courts. Potential due Comment: Multiple Tribes stated that Circuit’s narrow decision in CITGO, 801 process concerns are relevant when the the United Nations ‘‘Declaration on the F.3d 477 (5th Cir. 2015), which only language of a statute is ambiguous and Rights of Indigenous Peoples’’ (2007) holds that the MBTA does not impose assist in divining its proper meaning. (‘‘UNDRIP’’), endorsed by the United strict liability for nonculpable We do not base our current States in 2010, recognizes that omissions. Further, the commenter interpretation solely on those due indigenous people must give Free, Prior noted that the notice of the proposed process concerns; instead, they reinforce and Informed Consent for projects rule acknowledges that Congress our current interpretation as the correct affecting their interests, prior to intended to adopt the common law construction of section 2’s ambiguous approval of any project affecting their definition of statutory terms such as language. land or territories. Multiple federally ‘‘take.’’ Comment: Multiple commenters recognized Tribes expect DOI to honor Response: The preamble to this claimed that because the new Solicitor’s this policy in order to ensure no rulemaking exhaustively explains our Opinion rests on but does not resolve unilateral actions are taken that affect interpretation of the terms ‘‘kill’’ and the Circuit court split indicates that Tribal land, territories or people without ‘‘take’’ in MBTA section 2. We disagree courts are not obligated to adhere to its Tribal consent. with the commenter’s conclusions and interpretation. The fact that no permit Response: The UNDRIP—while not refer readers to our analysis in the program has ever existed for incidental legally binding or a statement of current preamble. take demonstrates established international law—has both moral and Comment: One commenter stated that precedent. The Department and the political force. The United States the proposed rule does not address the Service cannot ethically, legally, or Government announced its support of Service’s statutory authority to change morally make enforcement of Federal the UNDRIP in 2010. In its the interpretation of the MBTA. The law a moving target for the convenience announcement, the United States commenter stated that the proposed rule of the regulated industry. explained that it recognizes the does not facilitate the Service’s only Response: The commenters are correct significance of the Declaration’s authorized action under the statute, that whether the Service interprets the provisions on free, prior-and-informed which is the authority ‘‘to determine MBTA to prohibit or exclude incidental consent, which the United States when, to what extent, if at all, and by take, that interpretation will not by itself understands to call for a process of what means, it is compatible with the resolve the current split in the circuit meaningful consultation with Tribal terms of the conventions to allow’’ courts. However, Federal courts are leaders—but not necessarily the hunting, etc., of such birds, or any part, obliged to defer to an agency’s agreement of those leaders—before the nest, or egg thereof. The Service’s reasonable interpretation of ambiguous actions addressed in those consultations proposal does not even address its statutory language if that interpretation are taken. actual statutory authority. is codified in a regulation that To this end, the United States Response: This proposal does not undergoes public notice and comment supports these aspirations of the authorize the taking of migratory birds; under the Administrative Procedure UNDRIP through the government-to- it defines the scope for when Act. See Chevron, U.S.A. v. Natural government consultation process when authorizations under section 703 are Resources Defense Council, 467 U.S. agency actions may affect the interests necessary and appropriate. Thus, it does 837 (1984). Application of judicial of federally recognized Tribes. The not rely on the statutory language Chevron deference to this rulemaking Service has sought to involve and quoted by the commenter. The authority would provide more certainty than any consult with Tribes regarding this to implement a statute necessarily prior position of the Department by rulemaking. Prior to the publication of comes with it the authority both to increasing the likelihood that Federal the proposed rule, the Service held a interpret ambiguous language in that courts will defer to the Service’s NEPA scoping webinar on March 16, statute and to correct a prior improper interpretation. We do not understand 2020, that we allowed only Tribal interpretation of that language. the point of the commenter’s statement members to attend, with the sole Comment: Multiple commenters that the absence of a prior permit purpose of informing Tribes of the stated that Solicitor’s M-Opinion 37050 program established precedent on proposed action. The Service sought stands in direct conflict with Executive whether or not the MBTA prohibits feedback from Tribal representatives to Order 13186 executed by President

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Clinton in 2001. The commenters noted ESA. This rulemaking will not and the draft EIS provided opportunities that the Executive Order defines ‘‘take’’ significantly affect the Service’s to weigh in on the alternatives to the consistent with the Service’s general obligations under other legal statutes proposed action. Both the M-Opinion definition applicable to all wildlife that protect migratory birds. and the preamble to the proposed rule statutes in 50 CFR 10.12. The Executive Comment: Only a few years ago, the provide detailed background and Order further states without any United States exchanged formal analysis that explain why the Solicitor uncertainty that the MBTA and its diplomatic notes with Canada concluded the MBTA does not prohibit implementing regulations apply to both reaffirming our countries’ common incidental take and why the Service intentional and unintentional takings of interpretation that the treaty prohibited adopted that analysis and conclusion. migratory birds. Because E.O. 13186 has the incidental killing of birds. The The Service has provided a Regulatory not to date been revoked, M-Opinion Service must consider how its proposed Impact Analysis with the proposed rule, 37050 and this rulemaking directly interpretation is consistent with that which provides a cost-benefit analysis conflict with that standing presidential diplomatic exchange and seek Canada’s of the rule along with reasonable directive. The Service must explain how views on the Service’s new alternatives, to comply with Executive the proposed rule meets and affects its interpretation in light of that exchange. Order 12866 and certifies that the rule own responsibilities and those of other Response: The exchange of diplomatic will not have a significant economic Federal agencies under this Executive notes the commenter references impact on a substantial number of small Order. occurred in 2008 and did not amount to entities to comply with the Regulatory Response: We do not agree with the an agreement that prohibiting incidental Flexibility Act. commenters that this rulemaking take was required by the Convention. Comment: A commenter stated that conflicts with Executive Order 13186. Therefore, we do not regard our current the proposed rule will result in a This rulemaking does not directly affect approach to be inconsistent with the dangerous slippery slope, making intent how Federal agencies manage incidental 2008 diplomatic exchange. difficult to prove because if there is no take as set forth in memoranda of Comment: Numerous commenters regulation for ‘‘unintentional’’ take, then understanding (MOUs) developed under requested that the Service return to the anything could be classified as the Executive Order. E.O. 13186 was not previous interpretation of the MBTA ‘‘incidental take.’’ The proposed rule designed to implement the MBTA per and publish a proposed rule that change puts the burden of proof on the se, but rather was intended to govern codifies the former interpretation that Service of determining ‘‘intent,’’ which Federal efforts to conserve migratory the MBTA prohibits incidental take. can be difficult or impossible to truly birds more broadly. In any case, each Response: We have chosen to codify establish. Without retaining the legal Federal agency should continue to the interpretation set forth in Solicitor’s responsibility by individuals and/or comply with the Executive Order, and Opinion M–37050 and interpret the companies under the existing MBTA, each agency with an MOU should scope of the MBTA to exclude there would be far less money available continue to carry out that MOU, incidental take. Thus, we decline the for mitigation of preventable including any conservation measures commenter’s request to codify the prior environmental damage. that reduce incidental take, even though interpretation as set forth in M–37041, Response: The proposed rule does not that take does not violate the MBTA. which would achieve the opposite alter the burden of proof for intentional Comment: The Service must complete effect. take under the MBTA. Over 100 years of a full analysis of the impacts of the Comment: One commenter stated that case law and amendments to the statute Solicitor’s M-Opinion itself, not just the it is notable that no additional have provided extensive guidance on incremental impacts of codifying the M- alternatives were in the proposed rule. the requirements to prove intent under Opinion. The commenter further noted that the the criminal provisions of the MBTA. Response: The EIS analyzes the Service failed to disclose the thought This rulemaking will not disturb that incremental impact of codifying M– process followed in the selection of the case law or change our enforcement of 37050 and the alternative of returning to proposed course of action in the the statute in that context. An analysis the interpretation of the MBTA proposed rule. Therefore, the of the amount of funding available for espoused by the prior Opinion, M– commenter requested that the proposed mitigation of environmental damage, 37041, which concluded the MBTA rule be revised to include the three including incidental take of migratory does prohibit incidental take. The EIS alternatives described in NEPA scoping birds, would be largely speculative at compares the environmental effects of and detailed information about the this point and not directly relevant to both alternatives. Thus, the Service has implementation of each, ensuring all this rulemaking. To the extent there are analyzed the environmental impacts of affected parties are aware of the economic impacts associated with this adopting either opposing interpretation alternatives, through proper notice of rulemaking or the alternatives of the MBTA. rulemaking, as well as how the Service considered in the associated NEPA Comment: The Service must reconcile made its choice. The rule should be analysis, those are described in the EIS how this action aligns with other legal reissued in proposed form, allowing the and the regulatory impact analysis statutes that protect birds and public to weigh in on the alternatives conducted to comply with Executive demonstrate how the rule aligns with and on the Service’s choice. Orders 12866, 13563, and 13771. other statutory obligations such as the Response: An analysis of reasonable Comment: Some commenters noted Fish and Wildlife Conservation Act, alternatives to a proposed action is a that the application of the MBTA as which obligates monitoring for bird requirement of the NEPA process. There restricting anything other than populations. is no requirement under the APA to intentional take of covered species Response: The Service’s consider alternatives in a proposed rule. offends canons of American criminal implementation of the Fish and Wildlife The Service proposed to codify the law and is perhaps most absurd when Conservation Act is not directly relevant interpretation set forth in Solicitor’s viewed in this light. The U.S. Supreme to this rulemaking. The Service will Opinion M–37050 and presented Court has held: ‘‘Under a long line of continue to monitor migratory bird reasonable alternatives to that proposal our decisions, the tie must go to the species, particularly species of concern in the associated draft EIS. The public defendant. The rule of lenity requires and candidates for listing under the comment period for the scoping notice ambiguous criminal laws to be

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interpreted in favor of the defendants scenario in which the majority of demonstrate how this proposed rule subjected to them.... This venerable Americans could be considered actually benefits birds, instead focusing rule not only vindicates the potential criminals. The commenter almost exclusively on economic fundamental principle that no citizen notes that enforcement of the MBTA interests of previously regulated should be held accountable for a under such an extreme interpretation industries. The commenter notes there violation of a statute whose commands would have devastating consequences is little mention in either notice of are uncertain, or subjected to for American businesses and biological impacts or assessment of bird punishment that is not clearly communities, particularly in rural species protected by the Act. Interior prescribed. It also places the weight of communities in close proximity to and the Service fail to recognize that the inertia upon the party that can best migratory bird habitat. As described in MBTA’s singular statutory purpose is to induce Congress to speak more clearly the proposed rule, millions of birds are protect and conserve migratory birds. and keeps courts from making criminal killed every year from accidents such as The U.S. Supreme Court described this law in Congress’s stead.’’ United States collisions with glass windows, power purpose as ‘‘a national interest of very v. Santos, 553 U.S. 507, 514 (2008) lines, and vehicles. These are nearly the first magnitude,’’ and the (internal citations omitted). unfortunately realities of modern life origin of the statute to implement the Response: We agree with this and beyond the scope of the MBTA. The international treaties signed for comment. U.S. Supreme Court has ruled that the migratory bird conservation must not be Comment: Some commenters noted interpretation of a statute that would overlooked. This environmental review that the prosecution of individual lead to absurd results must be avoided should focus on the biological impacts citizens or companies for the incidental in favor of other interpretations and benefits to birds of the proposed take of migratory birds does not benefit ‘‘consistent with the legislative rule and any authorization program that conservation efforts. A few commenters purpose.’’ the Service is considering. It is noted that their industry sectors will Response: We agree with the misleading and simply false to suggest, continue to work with Federal and State commenter that interpreting the MBTA as Interior does, that any regulation of agencies and help them fulfill their to prohibit incidental take could incidental take under the MBTA is mission to conserve, protect, and potentially lead to some of the cited unduly burdensome. enhance wildlife and their habitat for absurd results. We refer the commenter Response: We constructed the the continuing benefit of all people. The to the analysis of the economic impacts purpose and need in the draft EIS to commenters noted that despite efforts to of interpreting the scope of the statute reflect our proposal to codify the correct prevent incidental take, such take is not to prohibit incidental take in the EIS interpretation of the MBTA as it relates one-hundred-percent preventable and and regulatory impact analysis to incidental take. Developing an criminalizing incidental take does not conducted to comply with Executive authorization program was not within advance conservation efforts. Removing Orders 12866, 13563, and 13771. the scope of our proposal. We disagree the threat of unwarranted legal attacks Comment: One commenter stated that with the commenter’s interpretation of under the MBTA will allow businesses as a result of the Federal Circuit Court the MBTA and our nondiscretionary to continue operating under good faith split and dueling Solicitor’s opinions, and discretionary duties to implement efforts to limit impacts to migratory and without MBTA regulations the MBTA. We refer the commenter to birds. addressing what activities are the EIS for analysis and discussion of Response: We appreciate that the prohibited under the MBTA, the same the environmental impacts of the commenters have engaged with the activities that are entirely lawful in proposal and reasonable alternatives. Service to advance conservation efforts some parts of the country could give rise The Service will continue to ensure that that protect and enhance wildlife, to strict criminal liability in parts of the migratory birds are protected from including migratory birds, and that country in which Federal Circuit Courts direct take. We will also continue to commenters advocate continued use of have held that unintentional take is work with other Federal agencies and good faith efforts to limit impacts to prohibited under the MBTA. The stakeholders to promote conservation migratory birds. commenter noted that the MBTA should measures that reduce incidental take Comment: One commenter noted that be given a uniform interpretation across and protect migratory bird habitat, the proposed codification differentiates all regions of the country and is consistent with the Federal statutes we between wanton acts of destruction and appreciative that the Service is engaging implement to manage, conserve, and criminal negligence, on the one hand, in a rulemaking process to achieve this protect migratory birds and other and the accidental or incidental take of result. wildlife. a protected bird, however regrettable, on Response: We agree with this Comment: As a policy matter, the the other. U.S. law has long comment. Service has not justified its departure differentiated between harm caused by Comment: One commenter questioned from its prior interpretation of the Act, intent and harm caused by accident. the evidence suggesting that this rule which was effective in protecting The proposed rulemaking extends that change is warranted. The commenter migratory birds without undue practice to the MBTA. questions what economic progress has regulatory burden. Response: We agree with the been halted due to the protections of the Response: We respectfully disagree commenter that this rulemaking will MBTA and how this action is in the best that the Service has not justified its continue to authorize criminal interest of the American people. current interpretation of the MBTA. M– enforcement of intentional take while Response: We refer the commenter to 37050 and the preamble to the proposed codifying that the MBTA does not the EIS and the regulatory impact rule explained the basis for the prohibit incidental take. analysis for our conclusions regarding interpretation of the MBTA we are Comment: One industry commenter the environmental and economic codifying in this rulemaking in great claimed that an extreme application of impacts of this rulemaking and its detail referencing the language of the the MBTA imposes criminal liability reasonable alternatives on migratory statute itself, the international any time a migratory bird is killed birds and regulated entities. Conventions underlying the MBTA, its incidental to another activity and would Comment: A commenter stated that legislative history, and subsequent case create an absurd and likely disastrous the Service has done little to law. As part of our duty as the agency

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responsible for implementing the address the evolution of threats to Act (CERCLA), the Oil Pollution Act, MBTA, we are obliged to present to the migratory birds or to ensure the and the Clean Water Act, the public our interpretation of any sustainability of healthy bird Department is authorized to assess ambiguous language that affects public populations. While unregulated injury to natural resources caused by rights or obligations. harvesting is no longer a primary threat releases of hazardous substances and Comment: One commenter noted that to migratory birds, declines in bird discharges of oil to compensate the the Service should not rely on other populations continue to remain a public for lost natural resources and statutes or regulations to absolve itself serious international issue. The their services. The Department’s from addressing incidental take. The commenters noted that international assessment of natural resource injuries commenter noted that the current partners would suffer the loss of the under the Natural Resource Damage administration is relaxing a number of many benefits of migratory birds as the Assessment Program includes any regulations such as the Clean Water Act United States rolls back its protective injury to migratory birds, which in and the Endangered Species Act. policies. many cases could otherwise be Collectively, the change in Response: We disagree that this classified as incidental take. We will interpretation of these foundational rulemaking will result in a substantial continue to implement these programs laws and rules will undoubtedly remove increase in the number of migratory consistent with our treaty obligations. any motivation for regulated entities to birds killed. The EIS notes that it may Comment: One commenter stated that mitigate the harm caused by their result in a measurable increase, but we the proposed rule is not consistent with actions on birds and their eggs and will do not expect it to be substantial. In section 2(a) of the Migratory Bird Treaty increase incidental take. other words, there may be a measurable Act, which states that ‘‘it shall be Response: A wide array of statutory difference but we do not expect it to unlawful at any time, by any means or mandates provide protections to substantially affect the existing in any manner, to pursue, hunt, take, wildlife, including migratory birds. In trajectory of the number of migratory capture, kill . . . any migratory bird.’’ this rulemaking, the Service describes birds killed. It is important to note that The key words regarding the prohibition these various protections, but does not the MBTA should not be relied upon by of incidental take are ‘‘at any time, by rely on them to address incidental take itself to reduce large-scale impacts on any means or in any manner.’’ The of migratory birds in the absence of migratory bird populations, whether or words ‘‘in any manner’’ means MBTA protection. Our interpretation of not it is interpreted to prohibit regardless of whether it is purposeful or the MBTA is primarily governed by the incidental take. It is simply one tool in not. language of the statute, its legislative what must be a multifaceted approach. Response: We disagree with the history, and subsequent case law. Voluntary efforts and development of commenter on the import and context of Whether other statutes provide industry best practices are an the language ‘‘at any time, by any means protection to migratory birds is not indispensable part of this approach, or in any manner’’ in section 2 of the directly relevant to codifying our particularly given that the substantial MBTA. The preamble to this regulation current interpretation. The Service also decreases in migratory bird populations explains the correct context for that notes that the motivation to implement over the last 50 years have occurred language and its relevance to whether conservation measures to mitigate harm despite the prior agency practice of the MBTA prohibits incidental take. to migratory birds is not simply driven enforcing the MBTA with respect to Comment: Multiple commenters by the threat of enforcement. Many incidental take. We will continue to suggested that reinterpretation of the other factors are often at play for work with our domestic and MBTA will cause tension with Canada, companies engaged in actions that may international partners, the regulated whose migratory bird populations will affect migratory birds, including public community, and the public at large to also be affected by rules that are more perception, green business credentials, uphold our commitment to ensure the lenient. economic factors, State law, and long-term conservation of migratory Response: The Service has met with pressure from investors and lenders. birds under the migratory bird its counterparts in Canada regarding the Comment: One commenter requested Conventions. proposed rule. The Government of that the Service remember their treaty Comment: The proposed rule ignores Canada submitted comments on the obligation to protect birds that are article IV of the amended Canada treaty draft EIS associated with this shared with other countries that as that the United States is to ‘‘seek means rulemaking. We summarized and independent nations could not ensure to prevent damage to such birds and addressed substantive comments the protection of species that migrate their environments, including damage received from the Government of across borders. resulting from pollution.’’ Under the Canada in Appendix C of the final EIS. Response: We acknowledge this new interpretation of the MBTA, Any impacts to migratory birds that we comment and submit that we will pollution is no longer a considered share with Canada are also discussed in continue to implement relevant factor as pollution is almost never a the EIS. domestic laws and regulations and direct, purposeful act. This failure to Additionally, after publication of the provide technical advice and assistance address threats beyond harvesting final EIS, the Government of Canada to our treaty partners and encourage undermines the United States’ submitted a further comment expressing continued conservation and protection commitment under the amended concern regarding this rule. Regarding of migratory birds to the extent Canada treaty to ensure the long-term the comments from the Government of authorized by their domestic laws. conservation of shared migratory bird Canada, the Service identified the Comment: Multiple commenters species. impacts to migratory birds to the extent stated that the proposed rule is likely to Response: Our commitment to our it was able in the final EIS, based on the facilitate a substantial increase in the treaty partners to prevent and mitigate information available. number of migratory birds killed, in damage to migratory birds from Comment: Multiple comments stated direct conflict with the amended treaty pollution is implemented by several that this proposed major shift in policy with Canada. The commenters noted domestic laws. For example, pursuant to and regulation in the MBTA will have that the proposed rule change is the Comprehensive Environmental international implications. The extremely limited in scope as it fails to Response Compensation and Liability commenters note that migratory birds

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are a shared hemispheric resource, for risk.’’ The commenters noted that rather hold migratory birds in trust for their which we are only custodians and than providing certainty into the citizenry. Moreover, the States and their stewards while they are within the enforcement of the law, the M-Opinion citizens benefit from the role that borders of the United States. Any and this rulemaking may have increased migratory birds play in maintaining attempt to permanently weaken the uncertainty about what will be expected ecological balance and the valuable MBTA, which will perpetuate, and for industries, especially as many ecological services that they provide. almost certainly increase, the level of development decisions need to be made The critically important ecological injury and death of migratory birds, considering many years and decades services these species provide include needs concurrence by Canada, Mexico, into the future. Additionally, the M- insect and rodent control, pollination, Japan, and Russia if our treaty Opinion and the proposed rule may and seed dispersal. As the U.S. Supreme obligations are to have any true inject more uncertainty about what is Court recognized 100 years ago, State- meaning. The Service has not addressed considered ‘‘take’’ compared to the level protections are insufficient to this international aspect in its planning previous decades of enforcement. For protect transient species that travel and has not worked with the State example, the removal of active nests outside of a State’s territorial bounds. In Department on the issue. With this when the purpose of the underlying a landmark decision upholding the proposed change, the Service is making activity is not to harm birds but related constitutionality of the MBTA, Justice a unilateral change that will later be to another activity, such as construction Holmes wrote that migratory birds, deemed an abrogation of our or cleaning, has created confusion and which ‘‘yesterday had not arrived, international agreements with these a major loophole. Documents released tomorrow may be in another State and other sovereign nations. under the Freedom of Information Act in a week a thousand miles away’’ can Response: The MBTA, along with reveal numerous questions from entities be ‘‘protected only by national action.’’ several other statutes, implements the since publication of the M-Opinion Missouri v. Holland, 252 U.S. 416, 434– migratory bird Conventions. The parties about what constitutes prohibited take. 35 (1920). If left to the States, the result to those Conventions may meet to This legal uncertainty also leads to would be a patchwork of legal amend and update the provisions of the scientific uncertainty about future approaches, reducing consistency Conventions, but enactment, impacts on birds. This additional nationwide. Individual States therefore amendment, and implementation of uncertainty should be considered by the rely on Federal law (and the domestic laws that implement those Service going forward. international treaties implemented by Conventions do not require concurrence Response: We note that a primary Federal law) to protect their own bird by the other parties. We have undergone purpose of codifying the interpretation populations when individual birds interagency review of this rulemaking at presented in M–37050 is to provide migrate beyond their boundaries. the proposed and final stages facilitated more certainty and permanence Interior’s elimination of longstanding by the Office of Management and regarding the Department’s position on Federal protection harms State interests. Budget, which included input from the the scope of the MBTA as it relates to Response: The intent of this State Department. We will not speculate incidental take. Adopting the prior rulemaking is not to harm States, but to on the views of our Convention partners interpretation through regulation would interpret the MBTA in the manner beyond the public comments reflected not provide any more long-term Congress intended when it drafted and here. certainty in this regard. Codification in enacted the statute. States remain free to Comment: One commenter stated that the Code of Federal Regulations prohibit, manage, or regulate incidental this rule represents a fundamental provides the maximum certainty and take of migratory birds as they see fit abdication of the Service’s mission to permanence possible absent new under State law, and nothing in this protect native wild birds. There is legislation, over which we have no regulation or the MBTA prevents them simply no question that the Service’s control. To a certain extent, some degree from doing so. The EIS associated with history of interpretation (until 2017) of of short-term uncertainty is to be this rulemaking analyzes the broader the MBTA as applying to incidental take expected when a change in agency effects of codifying our interpretation. has been the bulwark protecting tens of practice occurs. We continue to provide Though we conclude that this rule will millions of birds from unnecessary technical advice when requested have some negative effects on deaths. regarding application of the MBTA in populations of some species, we do not Response: We do not agree with the specific situations. The example find that those effects will be commenter’s assessment of this provided by the commenter regarding substantial. rulemaking or that available data active nest removal is a clear case of Comment: A commenter noted that supports the commenter’s analysis of incidental take that is not prohibited by the proposed rule fails to provide the Service’s prior interpretation. the MBTA, although it may violate other adequate justification under Executive Comment: One commenter Federal, State, Tribal, or local laws and Orders 12866 and 13563 with regard to recommended that the Service consider regulations. If the purpose of the providing flexible approaches consistent to what extent the proposed rule may referenced activity were specifically to with scientific integrity and protecting increase regulatory uncertainty for remove active bird nests, then that the environment. Simply stating that the industrial entities and other activity would still be a violation of the Service has used the best available stakeholders. This administration’s MBTA and a permit would be required science is not sufficient. The commenter sudden policy change has thrown before any removal could lawfully recommends the Service review its own decades of practice and policy into proceed. We will also continue to web pages and the scientific literature to upheaval for all entities, including monitor bird populations in partnership show that incidental take of birds is a industry, Federal, State, local, and with State wildlife agencies and other significant problem. Adopting this international agencies, conservation stakeholders. regulation ignores that science and fails groups, and more. Legal observers have Comment: The proposed rule would to protect the environment. It also fails also suggested that this policy may not harm States by depriving them of the the intent of the treaties. Providing a be permanent, and one analysis noted MBTA’s protections for migratory birds regulatory approach such as a that entities ‘‘would be wise to keep a that nest in, winter in, or pass through permitting program or a program based long-term perspective of MBTA-related their territories. The States own and upon a gross negligence approach

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would fulfill the Treaty obligations and freedom of choice for the public for public comment a regulatory while also satisfying the intent of E.O.s where these approaches are relevant, flexibility analysis that describes the 12866 and 13563. The commenter called feasible, and consistent with regulatory effects of the rule on small businesses, for the Office of Information and objectives. E.O. 13563 emphasizes small organizations, and small Regulatory Affairs to review the further that regulations must be based government jurisdictions. However, in justification for consistency with these on the best available science and that lieu of an initial or final regulatory Executive Orders. the rulemaking process must allow for flexibility analysis (IRFA or FRFA) the Response: The regulatory impact public participation and an open head of an agency may certify on a analysis developed for the proposed exchange of ideas. We have developed factual basis that the rule would not rule documents compliance with this rule in a manner consistent with have a significant economic impact on Executive Orders 12866 and 13563 and these requirements. a substantial number of small entities. was reviewed and approved by OMB’s Codifying our interpretation that the SBREFA amended the Regulatory Office of Information and Regulatory MBTA does not prohibit incidental take Flexibility Act to require Federal Affairs. We acknowledge that incidental into Federal regulations would provide agencies to provide a statement of the take of migratory birds has a negative the public, businesses, government factual basis for certifying that a rule impact on many migratory bird agencies, and other entities legal clarity would not have a significant economic populations and have assessed any and certainty regarding what is and is impact on a substantial number of small incremental impact caused by this not prohibited under the MBTA. It is entities. Thus, for an initial/final rulemaking and its reasonable anticipated that some entities that regulatory flexibility analysis to be alternatives in the EIS. We disagree that currently employ mitigation measures to required, impacts must exceed a this rulemaking will have a substantial reduce or eliminate incidental migratory threshold for ‘‘significant impact’’ and a impact on migratory bird populations bird take would reduce or curtail these threshold for a ‘‘substantial number of when compared to prior agency activities given the legal certainty small entities.’’ See 5 U.S.C. 605(b). This practice. provided by this regulation. Others may analysis first estimates the number of continue to employ these measures Required Determinations businesses impacted and then estimates voluntarily for various reasons or to the economic impact of the rule. Regulatory Planning and Review comply with other Federal, State, and (Executive Orders 12866 and 13563) local laws and regulations. The Service Table 1 lists the industry sectors Executive Order (E.O.) 12866 provides has conducted a cost-benefit analysis likely impacted by the rule. These are that the Office of Information and which can be viewed online at https:// the industries that typically incidentally Regulatory Affairs (OIRA) in the Office beta.regulations.gov/docket/FWS-HQ- take substantial numbers of birds and of Management and Budget (OMB) will MB-2018-0090/document and https:// that the Service has worked with to review all significant rules. OIRA has www.fws.gov/regulations/mbta/. reduce those effects. In some cases, determined that this rule is significant. these industries have been subject to Executive Order 13563 reaffirms the Regulatory Flexibility Act and Small enforcement actions and prosecutions principles of E.O. 12866 while calling Business Regulatory Enforcement under the MBTA prior to the issuance for improvements in the nation’s Fairness Act of M–37050. The vast majority of regulatory system to promote Under the Regulatory Flexibility Act entities in these sectors are small predictability, to reduce uncertainty, (5 U.S.C. 601 et seq., as amended by the entities, based on the U.S. Small and to use the best, most innovative, Small Business Regulatory Enforcement Business Administration (SBA) small and least burdensome tools for Fairness Act (SBREFA) of 1996 (Pub. L. business size standards. Not all small achieving regulatory ends. The 104–121)), whenever an agency is businesses will be impacted by this rule. executive order directs agencies to required to publish a notice of Only those businesses choosing to consider regulatory approaches that rulemaking for any proposed or final reduce best management practices will reduce burdens and maintain flexibility rule, it must prepare and make available accrue benefits.

TABLE 1—DISTRIBUTION OF BUSINESSES WITHIN AFFECTED INDUSTRIES

Small business Number NAICS industry description NAICS code Number of size of small businesses standard businesses (employees)

Finfish Fishing ...... 114111 1,210 20 (a) 1,185 Crude Petroleum and Natural Gas Extraction ...... 211111 6,878 1,250 6,868 Drilling Oil and Gas Wells ...... 213111 2,097 1,000 2,092 Solar Electric Power Generation ...... 221114 153 250 153 Wind Electric Power Generation ...... 221115 264 250 263 Electric Bulk Power Transmission ...... 221121 261 500 214 Electric Power Distribution ...... 221122 7,557 1,000 7,520 Wireless Telecommunications Carriers (except Satellite) ...... 517312 15,845 1,500 15,831 Source: U.S. Census Bureau, 2012 County Business Patterns. a Note: The Small Business Administration size standard for finfish fishing is $22 million. Neither Economic Census, Agriculture Census, nor the National Marine Fisheries Service collect business data by revenue size for the finfish industry. Therefore, we employ other data to approxi- mate the number of small businesses. Source: U.S. Census Bureau, 2017 Economic Annual Survey.

Since the Service does not have a incidental take of migratory birds, the information regarding how many permitting system authorizing Service does not have specific businesses in each sector implement

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measures to reduce incidental take of entities would benefit from this rule summary of the economic effects of the birds. Not all businesses in each sector because it would remove uncertainty rule on the business sectors identified in incidentally take birds. In addition, a about the potential impacts of proposed Table 1 (Table 7). variety of factors would influence projects. Therefore, these entities will whether, under the previous have better information for planning Finfish (NAICS 114111) interpretation of the MBTA, businesses projects and achieving goals. Although longline fishing is regulated However, the economic impact of the would implement such measures. It is under the Magnuson–Stevens Act, rule on small entities is likely not also unknown how many businesses seabirds are not afforded protection as significant. As shown in Table 6, the continued or reduced practices to they do not fall under that statute’s costs of actions businesses typically reduce the incidental take of birds since definition of bycatch. See 16 U.S.C. implement to reduce effects on birds are publication of the Solicitor’s M- 1802. Therefore, it is probable these small compared to the economic output Opinion. We did not receive any finfish businesses may reduce bird information on that issue during the of business, including small businesses, mitigation measures such as changes in public comment period for this rule. in these sectors. In addition, many design of longline fishing hooks, change This rule is deregulatory in nature businesses will continue to take actions and is thus likely to have a positive to reduce effects on birds because these in offal management practices, and economic impact on all regulated actions are best management practices flagging or streamers on fishing lines. entities, and many of these entities for their industry or are required by Table 6 shows example costs of some of likely qualify as small businesses under other Federal or State regulations, there the mitigation measures. the Small Business Administration’s is a public desire to continue them, or Data are unavailable regarding fleet threshold standards (see Table 1). By the businesses simply desire to reduce size and how many measures are codifying the Service’s interpretation, their effects on migratory birds. For employed on each vessel. Because data first outlined in Solicitor’s Opinion, M– example, 13 States have oil pit covering are unavailable about the distribution of 37050, this rulemaking would remove requirements. possible range of measures and costs, legal uncertainty for any individual, This analysis examines the potential we do not extrapolate cost data to small government entity, or business entity effect of the rule on small businesses in businesses. Table 2 shows the that undertakes any activity that may selected industries. Following this distribution of businesses by kill or take migratory birds incidental to discussion is a summary of mitigation employment size and average annual otherwise lawful activity. Such small measures and costs (Table 6) and a payroll.

TABLE 2—FINFISH NAICS 14111: EMPLOYMENT SIZES AND PAYROLL 1

Number of Average Employment size businesses annual payroll per business 2

Less than 5 employees ...... 1,134 $62,000 5 to 9 employees ...... 45 372,000 10 to 19 employees ...... 23 639,000 20 to 49 employees ...... 20 2,837,000 50 to 99 employees ...... 5 4,333,000 100 to 249 employees ...... 4 13,941,000 1 2017 Economic Census. 2 Sales data are not available by employment size.

Crude Petroleum and Natural Gas businesses in the crude petroleum and across the United States or across the Extraction (NAICS 211111) natural gas extraction industry. Since remaining States is unknown. the Small Business Size Standard is less Furthermore, the average number of oil The degree to which these small than 1,250 employees, we assume all pits per business is unknown. An businesses may be impacted by the rule businesses are small. Table 3 shows the estimate for the number of pits is is variable and is dependent on location distribution of businesses by unknown because some are ephemeral, and choice. Thirteen States (Illinois, employment size and sales. present only while a well is being Arkansas, Oklahoma, Texas, North Businesses located in the States that drilled, and others last for the life of the Dakota, South Dakota, Nebraska, do not have existing regulations would well. The replacement timeline for Montana, Wyoming, Colorado, Utah, have the option to reduce or eliminate netting is also variable because New Mexico, and California) have best management practices without hurricanes, strong winds, and strong regulations governing the treatment of potential litigation. As Table 6 shows, sun all have deleterious impacts on oil pits such as netting or screening of oil pit nets range in cost from about nets. Because data are unavailable about reserve pits, including measures $131,000 to $174,000 per acre, where the distribution or possible range of oil beneficial to birds. The remaining States most netted pits are about 1⁄4 to 1⁄2 acre. pits per business, we do not extrapolate represent approximately 24 percent of The distribution and number of oil pits netting cost data to small businesses.

TABLE 3—CRUDE PETROLEUM AND NATURAL GAS EXTRACTION NAICS 21111: EMPLOYMENT SIZES AND SALES 1

Number of Number of impacted Average Employment size businesses businesses sales per (37 states) business

Less than 5 employees ...... 3,957 966 $1,473,000

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TABLE 3—CRUDE PETROLEUM AND NATURAL GAS EXTRACTION NAICS 21111: EMPLOYMENT SIZES AND SALES 1— Continued

Number of Number of impacted Average Employment size businesses businesses sales per (37 states) business

5 to 9 employees ...... 723 177 9,291,000 10 to 19 employees ...... 632 154 22,386,000 20 to 49 employees ...... 552 135 72,510,000 50 to 99 employees ...... 203 50 180,065,000 100 to 249 employees ...... 156 38 344,694,000 250 employees or more ...... 84 21 839,456,000 1 2017 Economic Census.

Drilling Oil and Gas Wells (NAICS in the crude petroleum and natural gas across the United States or across the 213111) extraction industry. Since the Small remaining States is unknown. The degree to which these small Business Size Standard is less than Furthermore, the average number of oil business in NAICS 213111 may be 1,000 employees, we assume all pits per business is unknown. An impacted by the rule is variable and is businesses are small. Table 4 shows the estimate for the number of pits is dependent on location and choice. distribution of businesses by unknown because some are ephemeral, Thirteen States (Illinois, Arkansas, employment size and sales. present only while a well is being Oklahoma, Texas, North Dakota, South Businesses located in the States that drilled, and others last for the life of the Dakota, Nebraska, Montana, Wyoming, do not have existing regulations would well. The replacement timeline for Colorado, Utah, New Mexico, and have the option to reduce or eliminate netting is also variable because California) have regulations governing best management practices without hurricanes, strong winds, and strong the treatment of oil pits such as netting potential litigation. As Table 6 shows, sun all have deleterious impacts on or screening of reserve pits, including oil pit nets range in cost from about nets. Because data are unavailable about measures beneficial to birds. The $131,000 to $174,000 per acre, where the distribution or possible range of oil remaining States represent most netted pits are about 1⁄4 to 1⁄2 acre. pits per business, we do not extrapolate approximately 32 percent of businesses The distribution and number of oil pits netting cost data to small businesses.

TABLE 4—DRILLING OIL AND GAS WELLS NAICS 213111: EMPLOYMENT SIZES AND SALES 1

Number of Number of impacted Average sales Employment size businesses businesses per business (37 states)

Less than 5 employees ...... 1,217 393 $312,000 5 to 9 employees ...... 289 93 1,674,000 10 to 19 employees ...... 299 97 3,300,000 20 to 49 employees ...... 330 107 11,791,000 50 to 99 employees ...... 150 48 17,454,000 100 to 249 employees ...... 85 27 38,874,000 250 employees or more ...... 52 17 140,769,000 1 Economic Census 2017.

Solar Electric Power Generation (NAICS the number of States with regulations is potential litigation. As Table 6 shows, 221114) unknown. Table 5 shows the the cost of pre- and post-construction The degree to which these small distribution of businesses by bird surveys is unknown because data businesses may be impacted by the rule employment size and sales. are not publicly available and public is variable and is dependent on location Businesses located in States that do comments were not received to estimate and choice. Some States may have not have existing regulations would costs. Due to these unknowns, we do regulations that require monitoring bird have the option to reduce or eliminate not extrapolate cost data to small use and mortality at facilities; however, best management practices without businesses.

TABLE 5—SOLAR ELECTRIC POWER GENERATION NAICS 221114: EMPLOYMENT SIZES AND SALES 1

Average Employment size Number of sales per businesses business

Less than 5 employees ...... 91 $6,792,000 5 to 9 employees ...... 28 4,518,000 10 to 19 employees ...... 21 5,806,000 20 to 49 employees ...... 14 19,754,000 50 to 99 employees ...... 6 64,296,000

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TABLE 5—SOLAR ELECTRIC POWER GENERATION NAICS 221114: EMPLOYMENT SIZES AND SALES 1—Continued

Average Employment size Number of sales per businesses business

100 to 249 employees ...... 5 51,170,000 1 2017 Economic Census.

Other Industries (NAICS 221115, small relative to the cost of projects (see National Environmental Policy Act), 221121, 221122, and 517312) Table 7). Because there is not now, nor and potential litigation. has there previously been a large-scale Summary For the selected industries, we do not permit program for incidental take, the provide further analysis because baseline does not include the potential Table 6 identifies examples of bird minimal effects are expected on small costs of complying with such a program, mitigation measures and their businesses relative to an environmental including the regulatory uncertainty associated cost. Table 7 summarizes baseline based on current regulations associated with permit approval, likely economic effects of the rule on and voluntary conservation measures, compliance with other statutes (e.g., the the business sectors identified in Table due to the fact that mitigation costs are 1.

TABLE 6—BEST MANAGEMENT PRACTICES COSTS BY INDUSTRY 1

Why data are not extrapolated to entire NAICS industry Example of bird mitigation measure Estimated cost industry or small businesses

Finfish Fishing Changes in design of longline fishing • Costs are per vessel per • No data available on fleet size. (NAICS 11411). hooks, change in offal management year. • No data available on how many meas- practices, flagging or streamers on fish- • $1,400 for thawed blue-dyed ures are employed on each vessel. ing lines. bait. • $150 for strategic offal dis- cards. • $4,600 for Tori line ...... • $4,000 one-time cost for un- derwater setting chute. • $4,000 initial and $50 annual for side setting. Crude Petroleum and • Netting of oil pits and ponds ...... • $130,680 to $174,240 per • Infeasible to net pits larger than 1 acre Natural Gas Ex- • Closed wastewater systems ...... acre to net ponds. due to sagging. traction NAICS • Most netted pits are 1⁄4 to 1⁄2 • Size distribution of oil pits is unknown. (211111). acre. • Average number of pits per business is • Cost not available for waste- unknown. water systems. • Closed wastewater systems typically used for reasons other than bird mitiga- tion. Drilling Oil and Gas • Netting of oil pits and ponds ...... • $130,680 to $174,240 per • Infeasible to net pits larger than 1 acre Wells (NAICS • Closed loop drilling fluid systems ...... acre to net ponds. due to sagging. 213111). • Cost not available for closed • Size distribution of oil pits is unknown. loop drilling fluid systems, but • Average number of pits per business is may be a net cost savings in unknown. arid areas with water con- • Closed loop drilling fluid systems typi- servation requirements. cally used for reasons other than bird mitigation. • High variability in number of wells drilled per year (21,200 in 2019). Solar Electric Power Pre- and post-construction bird surveys ... No public comments received New projects can vary from 100 to 5,000 Generation to estimate costs. acres in size, and mortality surveys may (NAICS 221114). not scale linearly. Wind Electric Power • Pre-construction adjustment of turbine • Cost not available for adjust- • Data not available for adjustment of tur- Generation locations to minimize bird mortality dur- ment of turbine construction bine construction locations. (NAICS 221115). ing operations. locations. • High variability in survey costs and high • Pre- and post-construction bird surveys • $100,000 to $500,000 per fa- variability in need to conduct surveys. • Retrofit power poles to minimize eagle cility per year for pre-con- • High variability in cost and need to ret- mortality. struction site use and post- rofit power poles. construction bird mortality surveys. • $7,500 per power pole with high variability of cost. • Annual nationwide labor cost to implement wind energy guidelines: $17.6M. • Annual nationwide non-labor cost to implement wind en- ergy guidelines: $36.9M.

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TABLE 6—BEST MANAGEMENT PRACTICES COSTS BY INDUSTRY 1—Continued

Why data are not extrapolated to entire NAICS industry Example of bird mitigation measure Estimated cost industry or small businesses

Electric Bulk Power Retrofit power poles to minimize eagle $7,500 per power pole with High variability in cost and need to retrofit Transmission mortality. high variability of cost. power poles. (NAICS 221121). Electric Power Dis- Retrofit power poles to minimize eagle $7,500 per power pole with High variability in cost and need to retrofit tribution (NAICS mortality. high variability of cost. power poles. 221122). Wireless Tele- • Extinguish non-flashing lights on towers • Industry saves hundreds of Data not available for number of operators communications taller than 350′. dollars per year in electricity who have implemented these practices. Carriers (except • Retrofit towers shorter than 350′ with costs by extinguishing lights. Satellite) (NAICS LED flashing lights. • Retrofitting with LED lights 517312). requires initial cost outlay, which is recouped over time due to lower energy costs and reduced maintenance. 1 Sources: FWS personnel, National Oceanic and Atmospheric Administration Revised Seabird Regulations Amendment, eccnetting.com, statista.com, aerion.com, FWS Wind Energy Guidelines, FWS Public Records Act data, FWS Eagle Conservation Plan Guidance.

TABLE 7—SUMMARY OF ECONOMIC EFFECTS ON SMALL BUSINESSES

NAICS Bird mitigation meas- Economic effects on industry description NAICS code ures with no action small businesses Rationale

Finfish Fishing ...... 11411 Changes in design of Likely minimal effects .... Seabirds are specifically excluded from the defi- longline fishing nition of bycatch under the Magnuson-Ste- hooks, change in offal vens Fishery Conservation and Management management prac- Act, and therefore seabirds not listed under tices, and flagging/ the Endangered Species Act may not be cov- streamers on fishing ered by any mitigation measures. The impact lines. of this on small entities is unknown. Crude Petroleum and 211111 Using closed waste- Likely minimal effects .... Thirteen States have regulations governing the Natural Gas Extraction. water systems or net- treatment of oil pits such as netting or screen- ting of oil pits and ing of reserve pits, including measures bene- ponds. ficial to birds. In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. For these rea- sons, this rule is unlikely to affect a significant number of small entities. Drilling Oil and Gas 213111 Using closed waste- Likely minimal effects .... Thirteen States have regulations governing the Wells. water systems or net- treatment of oil pits, such as netting or ting of oil pits and screening of reserve pits, including measures ponds. beneficial to birds. In addition, much of the in- dustry is increasingly using closed systems, which do not pose a risk to birds. For these reasons, this rule is unlikely to affect a signifi- cant number of small entities. Solar Electric Power 221114 Monitoring bird use and Likely minimal effects .... Bird monitoring in some States may continue to Generation. mortality at facilities, be required under State policies. The number limited use of deter- of States and the policy details are unknown. rent systems such as streamers and reflec- tors. Wind Electric Power 221115 Following Wind Energy Likely minimal effects .... Following the Wind Energy Guidelines has be- Generation. Guidelines, which in- come industry best practice and would likely volve conducting risk continue. In addition, the industry uses these assessments for guidelines to aid in reducing effects on other siting facilities. regulated species like eagles and threatened and endangered bats. Electric Bulk Power 221121 Following Avian Power Likely minimal effects .... Industry would likely continue to use APLIC Transmission. Line Interaction Com- guidelines to reduce outages caused by birds mittee (APLIC) guide- and to reduce the take of eagles, regulated lines. under the Bald and Golden Eagle Protection Act. Electric Power Distribu- 221122 Following Avian Power Likely minimal effects .... Industry would likely continue to use APLIC tion. Line Interaction Com- guidelines to reduce outages caused by birds mittee (APLIC) guide- and to reduce the take of eagles, regulated lines. under the Bald and Golden Eagle Protection Act.

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TABLE 7—SUMMARY OF ECONOMIC EFFECTS ON SMALL BUSINESSES—Continued

NAICS Bird mitigation meas- Economic effects on industry description NAICS code ures with no action small businesses Rationale

Wireless Telecommuni- 517312 Installation of flashing Likely minimal effects .... Industry will likely continue to install flashing ob- cations Carriers (ex- obstruction lighting. struction lighting to save energy costs and to cept Satellite). comply with recent Federal Aviation Adminis- tration Lighting Circular and Federal Commu- nication Commission regulations.

As explained above and in the federalism summary impact statement Decision signed by the Director of the rationale set forth in Regulatory under E.O. 13132. U.S. Fish and Wildlife Service. Planning and Review, the economic Civil Justice Reform Compliance with Endangered Species effects on most or all regulated entities Act Requirements will be positive and this rule is not a In accordance with E.O. 12988, we major rule under SBREFA (5 U.S.C. determined that this rule will not Section 7 of the Endangered Species 804(2)). The head of the agency unduly burden the judicial system and Act of 1973, as amended (ESA; 16 therefore certifies that the rule would meets the requirements of sections 3(a) U.S.C. 1531–44), requires that ‘‘The not have a significant economic impact and 3(b)(2) of the Order. Secretary [of the Interior] shall review other programs administered by him on a substantial number of small Paperwork Reduction Act entities. and utilize such programs in This rule does not contain furtherance of the purposes of this Act.’’ Executive Order 13771—Reducing information collection requirements, 16 U.S.C. 1536(a)(1). It further states Regulation and Controlling Regulatory and a submission to the Office of ‘‘[e]ach Federal agency shall, in Costs Management and Budget (OMB) under consultation with and with the This rule is an E.O. 13771 (82 FR the Paperwork Reduction Act of 1995 assistance of the Secretary, insure that 9339, February 3, 2017) deregulatory (44 U.S.C. 3501 et seq.) is not required. any action authorized, funded, or action. We may not conduct or sponsor, and carried out by such agency . . . is not you are not required to respond to, a likely to jeopardize the continued Unfunded Mandates Reform Act collection of information unless it existence of any endangered species or In accordance with the Unfunded displays a currently valid OMB control threatened species or result in the Mandates Reform Act (2 U.S.C. 1501 et number. destruction or adverse modification of seq.), we have determined the following: [critical] habitat.’’ 16 U.S.C. 1536(a)(2). National Environmental Policy Act a. This rule would not ‘‘significantly We have determined that this rule or uniquely’’ affect small government We evaluated this regulation in regarding the take of migratory birds activities. A small government agency accordance with the criteria of the will have no effect on species listed plan is not required. National Environmental Policy Act under the provisions of the ESA. This b. This rule would not produce a (NEPA), the Department of the Interior rule does not lessen the requirements Federal mandate on local or State regulations on Implementation of the under the ESA and thus, species listed government or private entities. National Environmental Policy Act (43 under the ESA continue to be afforded Therefore, this action is not a CFR 46.10–46.450), and the Department the full protection of the ESA. ‘‘significant regulatory action’’ under of the Interior Manual (516 DM 8). We Therefore, this action will not have any the Unfunded Mandates Reform Act. completed an environmental impact effect on these species. statement (EIS) analyzing the potential Takings impacts of a reasonable range of Government-to-Government Relationship With Tribes In accordance with E.O. 12630, this alternatives for this action. Based on the rule does not contain a provision for analysis contained within the final EIS, In accordance with Executive Order taking of private property, and would the Service selected Alternative A— 13175, ‘‘Consultation and Coordination not have significant takings Promulgate regulations that define the with Indian Tribal Governments,’’ and implications. A takings implication scope of the MBTA to exclude the Department of the Interior’s manual assessment is not required. incidental take. Under Alternative A, at 512 DM 2, we considered the possible the Service hereby promulgates a effects of this rule on federally Federalism regulation that defines the scope of the recognized Indian Tribes. The This rule will not create substantial MBTA take prohibitions to include only Department of the Interior strives to direct effects or compliance costs on actions directed at migratory birds. This strengthen its government-to- State and local governments or preempt regulatory change is not expected to government relationship with Indian State law. Some States may choose to change current implementation or Tribes through a commitment to enact changes in their management enforcement of the MBTA. The Service consultation with Indian Tribes and efforts and regulatory processes and selected this alternative because it recognition of their right to self- staffing to develop and or implement clarifies our interpretation of the MBTA governance and Tribal sovereignty. We State laws governing birds, likely and reduces the regulatory burden on have evaluated this rule under the increasing costs for States. These efforts the public without significantly criteria in Executive Order 13175 and would require increased expenditure of affecting the conservation of migratory under the Department’s Tribal funds, but would not constitute direct bird species protected by the MBTA. consultation policy and have compliance costs. Therefore, this rule The Service’s selection of this determined that this rule may have a would not have sufficient federalism alternative and the basis for that substantial direct effect on federally effects to warrant preparation of a selection are provided in the Record of recognized Indian Tribes. We received

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requests from nine federally recognized distribution, or use of energy. The ■ 2. Add § 10.14 to subpart B to read as Tribes and two Tribal councils for action has not been otherwise follows: government-to-government designated by the Administrator of consultation. Accordingly, the Service OIRA as a significant energy action. No § 10.14 Scope of the Migratory Bird Treaty Act. initiated government-to-government Statement of Energy Effects is required. consultation via letters signed by List of Subjects in 50 CFR Part 10 The prohibitions of the Migratory Bird Regional Directors and completed the Treaty Act (16 U.S.C. 703) that make it consultations before issuing this final Exports, Fish, Imports, Law unlawful at any time, by any means or rule. The results of these consultations enforcement, Plants, Transportation, in any manner, to pursue, hunt, take, are summarized in the NEPA Record of Wildlife. capture, or kill migratory birds, or Decision associated with this attempt to engage in any of those Regulation Promulgation rulemaking, published at http:// actions, apply only to actions directed at www.regulations.gov in Docket No. For the reasons described in the migratory birds, their nests, or their FWS–HQ–MB–2018–0090. preamble, we amend subchapter B of eggs. Injury to or mortality of migratory chapter I, title 50 of the Code of Federal Energy Supply, Distribution, or Use birds that results from, but is not the Regulations, as set forth below: (E.O. 13211) purpose of, an action (i.e., incidental taking or killing) is not prohibited by E.O. 13211 requires agencies to PART 10—GENERAL PROVISIONS the Migratory Bird Treaty Act. prepare Statements of Energy Effects when undertaking certain actions. As ■ 1. The authority citation for part 10 George Wallace, noted above, this rule is a significant continues to read as follows: Assistant Secretary for Fish and Wildlife and Parks. regulatory action under E.O. 12866, but Authority: 16 U.S.C. 668a–d, 703–712, the rule is not likely to have a 742a–j–l, 1361–1384, 1401–1407, 1531–1543, [FR Doc. 2021–00054 Filed 1–5–21; 11:15 am] significant adverse effect on the supply, 3371–3378; 18 U.S.C. 42; 19 U.S.C. 1202. BILLING CODE 4333–15–P

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