1134 Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations 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. VerDate Sep<11>2014 18:43 Jan 06, 2021 Jkt 253001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\07JAR2.SGM 07JAR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations 1135 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.