Migratory Bird Permits; Programmatic Environmental Impact Statement, 30032-30036 [2015-12666]

Download as PDF 30032 Federal Register / Vol. 80, No. 100 / Tuesday, May 26, 2015 / Proposed Rules Provisioned items order (reserved for exclusive use by the Air Force only) Normal modification 00001–99999 ................................................................................................................. then ......................................................................................................................... A0001–A9999 ................................................................................................................ B0001–B9999 ................................................................................................................ and so on to ............................................................................................................... H0001–H9999 ................................................................................................................ then ......................................................................................................................... J0001–J9999 ................................................................................................................. then ......................................................................................................................... R0001–R9999 ................................................................................................................ then ......................................................................................................................... AA001–HZ999 ............................................................................................................... then JA001–JZ999 ................................................................................................................. RA001–RZ999 ............................................................................................................... (3) If the contract administration office is changing the contract administration or disbursement office for the first time and is using computer generated modifications to notify many offices, it uses the six position supplementary number ARZ999. If either office has to be changed again during the life of the contract, the supplementary number will be ARZ998, and on down as needed. 204.1670 Cross-reference to Federal Procurement Data System. Detailed guidance on mapping PIID and supplementary PIID numbers stored in the Electronic Document Access system to data elements reported in the Federal Procurement Data System can be found in PGI 204.1604–70. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS 204.1671 Order of application for modifications. (a) Circumstances may exist in which the numeric order of the modifications to a contract is not the order in which the changes to the contract actually take effect. (b) In order to determine the sequence of modifications to a contract or order, the modifications will be applied in the following order: (1) Modifications will be applied in order of the effective date on the modification. (2) In the event of two or more modifications with the same effective date, modifications will be applied in signature date order. (3) In the event of two or more modifications with the same effective date and the same signature date, procuring contracting office modifications will be applied in numeric order, followed by contract administration office modifications in numeric order. VerDate Sep<11>2014 15:06 May 22, 2015 Jkt 235001 K0001–K9999 ..................... KA001–KZ999 .................... L0001–L9999 ..................... LA001–LZ999 ..................... M0001–M9999 ................... MA001–MZ999 ................... N0001–N9999 .................... NA001–NZ999 .................... P0001–P9999 ..................... PA001–PZ999 .................... Q0001–Q9999 .................... QA001–QZ999 ................... S0001–S9999. SA001–SZ999. T0001–T9999. TA001–TZ999. U0001–U9999. UA001–UZ999. V0001–V9999. VA001–VZ999. W0001–W9999. WA001–WZ999. X0001–X9999. XA001–XZ999. ............................................. ............................................. Y0001–Y9999. YA001–YZ999. Subpart 204.70—[Removed and Reserved] 3. Remove subpart 204.70, consisting of sections 204.7000 through 204.7007. ■ PART 232—CONTRACT FINANCING 4. Add section 232.905 to subpart 232.9 to read as follows: ■ 232.905 Payment documentation and process. (b)(1)(iii) For task and delivery orders numbered in accordance with FAR 4.1603 and DFARS 204.1603, the 13character order number will serve as the contract number on invoices and receiving reports. Task and delivery orders numbered with a four-position alpha-numeric call/order serial number shall include both the 13-position basic contract Procurement Instrument Identifier and the four-position order number. PART 239—ACQUISITION OF INFORMATION TECHNOLOGY 239.7407 5. Remove and reserve section 239.7407. ■ 6. Amend Appendix F to Chapter 2, in section F–301, by revising paragraph (b)(1) to read as follows: Appendix F to Chapter 2–Material Inspection and Receiving Report * F–301 * * * * Preparation instructions. * * * * * * * * * [FR Doc. 2015–12344 Filed 5–22–15; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 21 Frm 00045 Fmt 4702 Sfmt 4702 [Docket No. FWS–HQ–MB–2014–0067; FF09M29000–156–FXMB1232090BPP0] RIN 1018–BA69 Migratory Bird Permits; Programmatic Environmental Impact Statement Fish and Wildlife Service, Interior. ACTION: Notice of intent. AGENCY: We, the U.S. Fish and Wildlife Service (Service, us, or we), intend to prepare a programmatic environmental impact statement (PEIS) pursuant to the National Environmental Policy Act to evaluate the potential environmental impacts of a proposal to authorize incidental take of migratory birds under the Migratory Bird Treaty Act. We are considering rulemaking to SUMMARY: (b) * * * (1) Contract no/delivery order no. (i) Enter the 13-position alpha-numeric basic Procurement Instrument Identifier (PIID) of the contract. For task and delivery orders numbered in accordance with FAR 4.1603 and DFARS 204.1603, enter the 13character order number only. If the order has only a four-position alpha numeric call/order serial number; enter both the 13-position PO 00000 basic contract PIID and the four-position order number. (ii) Except as indicated in paragraph (b)(1)(iii) of this appendix, do not enter supplementary numbers used in conjunction with basic PIIDs to identify— (A) Modifications of contracts and agreements; (B) Modifications to calls or orders; or (C) Document numbers representing contracts written between contractors. (iii) When shipping instructions are furnished and shipment is made before receipt of the confirming contract modification (SF 30, Amendment of Solicitation/Modification of Contract), enter a comment in the Misc. Info Tab to this effect. This will appear in the Comments section of the printed WAWF RR. [Removed and Reserved] ■ * Shipping instructions E:\FR\FM\26MYP1.SGM 26MYP1 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Federal Register / Vol. 80, No. 100 / Tuesday, May 26, 2015 / Proposed Rules address various approaches to regulating incidental take of migratory birds, including issuance of general incidental take authorizations for some types of hazards to birds associated with particular industry sectors; issuance of individual permits authorizing incidental take from particular projects or activities; development of memoranda of understanding with Federal agencies authorizing incidental take from those agencies’ operations and activities; and/or development of voluntary guidance for industry sectors regarding operational techniques or technologies that can avoid or minimize incidental take. The rulemaking would establish appropriate standards for any such regulatory approach to ensure that incidental take of migratory birds is appropriately mitigated, which may include requiring measures to avoid or minimize take or securing compensation. We invite input from other Federal and State agencies, tribes, nongovernmental organizations, and members of the public on the scope of the PEIS, the pertinent issues we should address, and alternatives to our proposed approaches for regulating incidental take. DATES: To ensure consideration of written comments, they must be submitted on or before July 27, 2015. ADDRESSES: You may submit written comments by one of the following methods. Please do not submit comments by both methods. • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS–HQ–MB–2014–0067. • U.S. mail or hand-delivery: Submit by U.S. mail to Public Comments Processing, Attention: FWS–HQ–MB– 2014–0067; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 5275 Leesburg Pike, MS–PPM, Falls Church, VA 22041– 3803. Please note in your submission that your comments are in regard to Incidental Take of Migratory Birds. We will post all information received on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Availability of Comments section below for more information). We will hold public Scoping Open Houses at the following times and locations: • June 16, 2015 from 6:00 p.m. until 9:00 p.m. at Courtyard Sacramento CalExpo, 1782 Tribute Road Sacramento, CA 95815; • June 18, 2015 from 5:00 p.m. until 8:00 p.m. at Holiday Inn Denver East— VerDate Sep<11>2014 15:06 May 22, 2015 Jkt 235001 Stapleton, 3333 East Quebec Street, Denver, CO 80207; • June 30, 2015 from 5:00 p.m. until 8:00 p.m. at Sheraton Westport Chalet, 191 Westport Plaza, St. Louis, MO 63146; and • July 2, 2015 from 2:00 p.m. until 5:00 p.m. at Holiday Inn Arlington at Ballston, 4610 N. Fairfax Dr., Arlington, VA 22203. In addition, we will present a public webinar on July 8, 2015. Additional information regarding these scoping sessions will be available on our Web site at http://www.birdregs.org. FOR FURTHER INFORMATION CONTACT: Sarah P. Mott at 703–358–1910, or Sarah_P_Mott@fws.gov. Hearing or speech impaired individuals may call the Federal Relay Service at 800–877– 8337 for TTY assistance. SUPPLEMENTARY INFORMATION: Background and Need for Action In 1916, the United States and Great Britain (on behalf of Canada), signed a treaty to protect migratory birds. In 1918, Congress passed the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703– 711) to implement the treaty with Canada. Among other things, the MBTA, as enacted, prohibited unauthorized killing and selling of birds covered by the treaty. The United States later signed bilateral treaties with Mexico, Japan, and the Union of Soviet Socialist Republics to protect migratory birds. After each treaty was signed, Congress amended the MBTA to cover the species addressed in that treaty. The MBTA makes it unlawful to take or kill individuals of most bird species found in the United States, unless that taking or killing is authorized pursuant to regulation 16 U.S.C. 703, 704. ‘‘Take’’ is defined in part 10 of title 50 of the Code of Federal Regulations (CFR) as ‘‘to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect’’ (50 CFR 10.12). ‘‘Migratory bird’’ means any bird protected by any of the treaties and currently includes 1,027 bird species in the United States (50 CFR 10.13), regardless of whether the particular species actually migrates. Of the 1,027 currently protected species, approximately 8% are either listed (in whole or in part) as threatened or endangered under the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.) and 25% are designated (in whole or in part) as Birds of Conservation Concern (BCC). BCC species are those birds that, without additional conservation actions, are likely to become candidates for listing under the PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 30033 ESA. According to the State of the Birds reports by the North American Bird Conservation Initiative (NABCI), most bird guilds (groups of birds that use the same habitat) are experiencing population declines, especially those using arid lands, grasslands, and ocean environments. Based on number of species within each guild, more raptors and waterbirds are on the ESA and BCC lists, respectively, with 43 percent and 41 percent of the species on these lists. Many natural and anthropogenic sources (any activity, action, or component of a project, enterprise, or endeavor) cause bird mortality or otherwise contribute to declining populations. Bird habitat is lost or degraded every year due to urbanization, energy development, agriculture, and forestry practices. These rapidly accelerating impacts can be mitigated through a variety of approaches, such as voluntary incentives, habitat restoration or protection, and best management practices. In addition, millions of birds are directly killed by interaction with human structures and activities, such as collisions with manmade structures, electrocutions, chemicals, and fisheries bycatch. The cumulative effects of these sources of mortality are contributing to continental-scale population declines for many species (State of the Birds, NABCI 2009, 2010, 2011, 2013, 2014). Many of these sources of avian mortality are becoming more prevalent across the landscape, and their impacts on bird populations are exacerbated by the effects of a changing climate. Birds in every habitat will likely be affected by anthropogenic sources and climate change, so conserving migratory bird populations will require a multifaceted, coordinated approach by governments, conservation organizations, industry, and the general public. An incidental take authorization program alone will not address all of the conservation needs of bird populations, but it could provide a framework to reduce existing human-caused mortality of birds and help avoid future impacts by promoting practical actions or conservation measures that will help industries and agencies avoid and minimize their impacts on birds. An authorization system created through rulemaking could encourage implementation of appropriate conservation measures to avoid or reduce avian mortality, such as the technologies and best management practices identified in current Service guidance for certain industry sectors, and could create a regulatory mechanism to obtain meaningful compensatory mitigation for bird mortality that cannot be avoided or E:\FR\FM\26MYP1.SGM 26MYP1 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS 30034 Federal Register / Vol. 80, No. 100 / Tuesday, May 26, 2015 / Proposed Rules minimized through best practices or technologies. Compensatory mitigation for incidental take, especially on a watershed or landscape basis, can provide conservation benefits through funding of habitat replacement, restoration, or, in certain circumstances, acquisition. The Service has longstanding regulations found at 50 CFR part 21 that authorize the issuance of permits to take migratory birds. A number of migratory bird regulations authorize purposeful take for a variety of purposes, including bird banding and marking, scientific collection, bird rehabilitation, raptor propagation, and falconry. Consistent with the Service’s longstanding position that the MBTA applies to take that occurs incidental to, and which is not the purpose of, an otherwise lawful activity, we also have authorized incidental take by the Armed Forces during military-readiness activities (50 CFR 21.15) and in certain situations through special use permits described in 50 CFR 21.27. We are now considering establishing more general authority to permit incidental take through general authorizations, individual permits, or interagency memoranda of understanding. This regulatory process would provide greater certainty for entities that have taken efforts to reduce incidental take and significantly benefit bird conservation by promoting implementation of appropriate conservation measures to avoid or reduce avian mortality. The process would also create a regulatory mechanism to obtain meaningful compensatory mitigation for bird mortality that cannot be avoided or minimized through best practices, risk management processes, or technologies. We are considering approaches that will minimize the administrative burden of compliance with this regulatory process for industry, other Federal agencies, and the Service, and will also consider continuation of our current efforts to work with interested industry sectors to develop voluntary guidance for avoiding or minimizing incidental take of migratory birds. These approaches will not affect 50 CFR 21.15, which was issued to allow the Armed Forces to incidentally take migratory birds during military-readiness activities. We note that should we develop a permit system authorizing and limiting incidental take, we would not expect every person or business that may incidentally take migratory birds to obtain a permit, nor would we intend to expand our judicious use of our enforcement authority under the MBTA. The Service focuses its enforcement VerDate Sep<11>2014 15:06 May 22, 2015 Jkt 235001 efforts under the MBTA on industries or activities that chronically kill birds and has historically pursued criminal prosecution under the Act only after notifying an industry of its concerns regarding avian mortality, working with the industry to find solutions, and proactively educating industry about ways to avoid or minimize take of migratory birds. Similarly, our permit program, if implemented, will focus on industries and activities that involve significant avian mortality and for which reasonable and effective measures to avoid or minimize take exist. Need for Agency Action We seek to provide legal clarity to Federal and State agencies, industry, and the public regarding compliance with the MBTA. At the same time, we have a legal responsibility under the MBTA and the treaties the Act implements to promote the conservation of migratory bird populations. We are considering actions, therefore, that can provide legal authorization for incidental take of migratory birds where authorization is appropriate, will promote adoption of measures to avoid or minimize incidental take, and will provide for appropriate mitigation, including compensation, for that take. NEPA Analysis of Potential Incidental Take Authorization Options The National Environmental Policy Act (NEPA) (42 U.S.C. 4321–4347) requires Federal agencies to undertake an assessment of environmental effects of any proposed action prior to making a final decision and implementing it. NEPA requirements apply to any Federal project, decision, or action that may have a significant impact on the quality of the human environment. NEPA also established the Council on Environmental Quality (CEQ), which issued regulations implementing the procedural provisions of NEPA (40 CFR parts 1500–1508). Among other considerations, CEQ regulations at 40 CFR 1508.28 recommend the use of tiering from a broader environmental impact statement (such as a national program or policy statement). Subsequent narrower statements or environmental analyses (such as regional or site-specific statements) would incorporate by reference the general discussions of the previous broad EIS and concentrate solely on the issues specific to the narrower statement. Consistent with this guidance, we intend to complete a programmatic environmental impact statement (PEIS) to consider a number of approaches to PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 regulating incidental take of migratory birds. The PEIS will address the potential environmental impacts of a range of reasonable alternatives for regulating and authorizing incidental take; the effectiveness of best practices or measures to mitigate take of migratory birds under the MBTA and adverse impacts to migratory bird resources; the potential for environmental impacts to non-bird resources, such as cultural resources, from measures to protect birds; the effects on migratory bird populations of sources of mortality other than incidental take; and the effects on migratory bird populations of impacts to migratory bird habitat, including, but not limited to, climate change. We will address our compliance with other applicable authorities in our proposed NEPA review. Tribal Responsibilities The Service has unique responsibilities to tribes including under the Bald and Golden Eagle Protection Act (16 U.S.C. 668–668d); the National Historic Preservation Act (16 U.S.C. 470 et seq.); the American Indian Religious Freedom Act (42 U.S.C. 1996); Native American Graves Protection and Repatriation Act (25 U.S.C. 3001); Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.); Secretarial Order 3206, American Indian Tribal Rights, Federal–Tribal Trust Responsibilities, and the ESA (June 5, 1997): Executive Order 13007, Indian Sacred Sites (61 FR 26771, May 29, 1996): and the Service’s Native American Policy. We apply the terms ‘‘tribal’’ or ‘‘tribe(s)’’ generally to federally recognized tribes and Alaska Native tribal entities. We will refer to Native Hawaiian Organizations separately when we intend to include those entities. The Service will separately consult with tribes and with Native Hawaiians on the proposals set forth in this notice of intent. We will also ensure that those tribes and Native Hawaiians wishing to engage directly in the NEPA process will have the opportunity to do so. As part of this process, we will protect the confidential nature of any consultations and other communications we have with tribes and Native Hawaiians. Possible Actions We are considering various approaches for authorizing incidental take of migratory birds. Each of these regulatory approaches would require us to promulgate new regulations under the MBTA, in compliance with applicable statutory and Executive Branch requirements for rulemaking. E:\FR\FM\26MYP1.SGM 26MYP1 Federal Register / Vol. 80, No. 100 / Tuesday, May 26, 2015 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS We will also consider, as an alternative to these regulatory approaches, a continuation of our practice of working with interested industry sectors to develop voluntary guidance that identifies best management practices or technologies that can effectively avoid or minimize avian mortality from hazards in those sectors. These approaches may be considered separately or in any combination. Therefore, the PEIS will consider the effects from each approach, and the effects from combined approaches. General Conditional Authorization for Incidental Take Associated With Particular Industry Sectors One possible approach would be to establish a general conditional authorization for incidental take by certain hazards to birds associated with particular industry sectors, provided that those industry sectors adhere to appropriate standards for protection and mitigation of incidental take of migratory birds. The standards would include conservation measures or technologies that have been developed to address practices or structures that kill or injure birds. We are considering developing authorizations under this approach for a number of types of hazards to birds that are associated with particular industry sectors, described below. We selected these hazards and sectors because we know that they consistently take birds and we have substantial knowledge about measures these industries can take to prevent or reduce incidental bird deaths. We have a history of working with these industry sectors to address associated hazards to birds by issuing guidance and reviewing projects at the field level or by engaging in collaborative efforts to establish best management practices and standards. • Oil, gas, and wastewater disposal pits can entrap birds that are attracted to a perceived source of water. Birds that land on or fall into the pit become covered with oil and may ultimately die from drowning, exhaustion, exposure, or effects of ingested oil. Closed containment systems or properly maintained netting prevents birds from entering these sites. • Methane or other gas burner pipes at oil production sites and other locations provide a hazard to birds from burning, entrapment in pipes or vents, or direct mortality from flame flare. Removing perches, installing perch deterrents, and covering pipes and other small openings can minimize this take. • Communication towers can have a significant impact on birds, especially birds migrating at night. Using recommended tower-siting practices VerDate Sep<11>2014 15:06 May 22, 2015 Jkt 235001 30035 and design features such as appropriate lighting, shorter tower heights, and eliminating or reducing the use of guy wires can minimize bird take caused by collisions with these structures. • Electric transmission and distribution lines impact a variety of birds through electrocution and collision. To reduce electrocutions, poles can be made avian-safe through pole and equipment design or through post-construction retrofitting measures. Collisions are best minimized through appropriate siting considerations. We may seek to develop additional general authorizations in this rulemaking for hazards to birds associated with other industry sectors. We are considering, for example, whether a general conditional authorization can be developed for hazards to birds related to wind energy generation, building on guidance we have developed jointly with that industry to address avian mortality. We seek input from the public and interested parties regarding the issues, environmental impacts, and mitigation techniques we should assess if we try to develop a general authorization for wind energy generation, and also on whether there are additional industry sectors for which general authorization of incidental take may be appropriate. understanding (MOU) with us to consider impacts to migratory birds in their actions and to mitigate that take appropriately. We have negotiated MOUs with a number of Federal agencies under Executive Order 13186 (66 FR 3853, January 17, 2001), but we have not previously sought to authorize incidental take through those memoranda. Expanding existing MOUs and negotiating MOUs with additional Federal agencies could provide an efficient programmatic approach to regulating and authorizing incidental take caused by Federal agency programs and activities. We may also consider whether MOUs with Federal agencies might provide appropriate vehicles for authorizing take by third parties regulated by those agencies, even though the agencies themselves are not subject to the prohibitions of the MBTA when acting in their regulatory capacities. The regulation we envision promulgating would not immediately authorize incidental take via existing MOUs, but would allow us to develop MOUs with interested agencies to authorize that take in the future. We will conduct appropriate NEPA analysis in connection with the development of any such memoranda if we pursue this option. Individual Permits A second possible approach would be to establish legal authority for issuing individual incidental take permits for projects or activities not covered under the described general, conditional authorization that present complexities or siting considerations that inherently require project-specific considerations, or for which there is limited information regarding adverse effects. We are considering ways to minimize the administrative burdens of obtaining individual incidental take permits for both applicants and the Service, such as combining environmental reviews for those permits with reviews being conducted for other Federal permits or authorizations. Our intention would be only to establish the authority and standards for issuance of individual permits in this rulemaking; we do not intend to issue any actual individual permits as part of this action. FWS will conduct site-specific NEPA reviews in connection with the future issuance of any such permit. Development of Voluntary Guidance for Industry Sectors We will also evaluate an approach that builds on our experience working with particular industry sectors to develop voluntary guidance that identifies best management practices or technologies that can be applied to avoid or minimize avian mortality resulting from specific hazards in those sectors. Under this approach, we would continue to work closely with interested industry sectors to assess the extent that their operations and facilities may pose hazards to migratory birds and to evaluate operational approaches or technological measures that can avoid or reduce the risk to migratory birds associated with those hazards. We would not provide legal authorization for incidental take of migratory birds by companies or individuals that comply with any such guidance, but would, as a matter of law-enforcement discretion, consider the extent to which a company or individual had complied with that guidance as a substantial factor in assessing any potential enforcement action for violation of the Act. Memoranda of Understanding With Federal Agencies A third possible approach would be to establish a procedure for authorizing incidental take by Federal agencies that commit in a memorandum of PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 Public Comments We request information from other interested government agencies, Native American tribes, Native Hawaiians, the E:\FR\FM\26MYP1.SGM 26MYP1 30036 Federal Register / Vol. 80, No. 100 / Tuesday, May 26, 2015 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS scientific community, industry, nongovernmental organizations, and other interested parties. We solicit input on the following: (1) The approaches we are considering for authorizing incidental take; (2) The specific types of hazards to birds associated with particular industry sectors that could be covered under general permits; (3) Potential approaches to mitigate and compensate for the take of migratory birds; (4) Other approaches, or combinations of approaches, we should consider with respect to the regulation and authorization of incidental take; (5) Specific requirements for NEPA analyses related to these actions; (6) Whether the actions we consider should distinguish between existing and new industry facilities and activities; (7) Considerations for evaluating the significance of impacts to migratory birds and to other affected resources, such as cultural resources; (8) Information regarding natural resources that may be affected by the proposal; (9) Considerations for evaluating the interactions between affected natural resources; VerDate Sep<11>2014 15:06 May 22, 2015 Jkt 235001 (10) The benefits provided by current Federal programs to conserve migratory birds and the additional benefits that would be provided by a program to authorize incidental take; (11) The potential costs to comply with the actions under consideration, including those borne by the Federal government and private sectors; (12) The baseline for quantifying the costs and benefits of the proposal; (13) Bird species having religious or cultural significance for tribes, bird species having religious or cultural significance for the general public, and impacts to cultural values from the actions being considered; (14) Considerations for evaluating climate change effects to migratory bird resources and to other affected resources, such as cultural resources; and (15) How to integrate existing guidance and plans, such as Avian Protection Plans, into the proposed regulatory framework. You may submit your comments and materials by one of the methods described above under ADDRESSES at the beginning of this notice of intent. PO 00000 Frm 00049 Fmt 4702 Sfmt 9990 Public Availability of Comments Written comments we receive become part of the public record associated with this action. Your address, phone number, email address, or other personal identifying information that you include in your comment may become publicly available. You may ask us to withhold your personal identifying information from public review, but we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety. Authority The authorities for this action are the MBTA, NEPA, and Executive Order 13186, Responsibilities of Federal Agencies to Protect Migratory Birds. Dated: May 20, 2015. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2015–12666 Filed 5–22–15; 8:45 am] BILLING CODE 4310–55–P E:\FR\FM\26MYP1.SGM 26MYP1

Agencies

[Federal Register Volume 80, Number 100 (Tuesday, May 26, 2015)]
[Proposed Rules]
[Pages 30032-30036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12666]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-HQ-MB-2014-0067; FF09M29000-156-FXMB1232090BPP0]
RIN 1018-BA69


Migratory Bird Permits; Programmatic Environmental Impact 
Statement

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of intent.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service, us, or we), 
intend to prepare a programmatic environmental impact statement (PEIS) 
pursuant to the National Environmental Policy Act to evaluate the 
potential environmental impacts of a proposal to authorize incidental 
take of migratory birds under the Migratory Bird Treaty Act. We are 
considering rulemaking to

[[Page 30033]]

address various approaches to regulating incidental take of migratory 
birds, including issuance of general incidental take authorizations for 
some types of hazards to birds associated with particular industry 
sectors; issuance of individual permits authorizing incidental take 
from particular projects or activities; development of memoranda of 
understanding with Federal agencies authorizing incidental take from 
those agencies' operations and activities; and/or development of 
voluntary guidance for industry sectors regarding operational 
techniques or technologies that can avoid or minimize incidental take. 
The rulemaking would establish appropriate standards for any such 
regulatory approach to ensure that incidental take of migratory birds 
is appropriately mitigated, which may include requiring measures to 
avoid or minimize take or securing compensation. We invite input from 
other Federal and State agencies, tribes, nongovernmental 
organizations, and members of the public on the scope of the PEIS, the 
pertinent issues we should address, and alternatives to our proposed 
approaches for regulating incidental take.

DATES: To ensure consideration of written comments, they must be 
submitted on or before July 27, 2015.

ADDRESSES: You may submit written comments by one of the following 
methods. Please do not submit comments by both methods.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-HQ-
MB-2014-0067.
     U.S. mail or hand-delivery: Submit by U.S. mail to Public 
Comments Processing, Attention: FWS-HQ-MB-2014-0067; Division of Policy 
and Directives Management; U.S. Fish and Wildlife Service; 5275 
Leesburg Pike, MS-PPM, Falls Church, VA 22041-3803.
    Please note in your submission that your comments are in regard to 
Incidental Take of Migratory Birds. We will post all information 
received on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Public 
Availability of Comments section below for more information).
    We will hold public Scoping Open Houses at the following times and 
locations:
     June 16, 2015 from 6:00 p.m. until 9:00 p.m. at Courtyard 
Sacramento CalExpo, 1782 Tribute Road Sacramento, CA 95815;
     June 18, 2015 from 5:00 p.m. until 8:00 p.m. at Holiday 
Inn Denver East--Stapleton, 3333 East Quebec Street, Denver, CO 80207;
     June 30, 2015 from 5:00 p.m. until 8:00 p.m. at Sheraton 
Westport Chalet, 191 Westport Plaza, St. Louis, MO 63146; and
     July 2, 2015 from 2:00 p.m. until 5:00 p.m. at Holiday Inn 
Arlington at Ballston, 4610 N. Fairfax Dr., Arlington, VA 22203.
    In addition, we will present a public webinar on July 8, 2015. 
Additional information regarding these scoping sessions will be 
available on our Web site at http://www.birdregs.org.

FOR FURTHER INFORMATION CONTACT: Sarah P. Mott at 703-358-1910, or 
Sarah_P_Mott@fws.gov. Hearing or speech impaired individuals may call 
the Federal Relay Service at 800-877-8337 for TTY assistance.

SUPPLEMENTARY INFORMATION:

Background and Need for Action

    In 1916, the United States and Great Britain (on behalf of Canada), 
signed a treaty to protect migratory birds. In 1918, Congress passed 
the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-711) to implement 
the treaty with Canada. Among other things, the MBTA, as enacted, 
prohibited unauthorized killing and selling of birds covered by the 
treaty. The United States later signed bilateral treaties with Mexico, 
Japan, and the Union of Soviet Socialist Republics to protect migratory 
birds. After each treaty was signed, Congress amended the MBTA to cover 
the species addressed in that treaty.
    The MBTA makes it unlawful to take or kill individuals of most bird 
species found in the United States, unless that taking or killing is 
authorized pursuant to regulation 16 U.S.C. 703, 704. ``Take'' is 
defined in part 10 of title 50 of the Code of Federal Regulations (CFR) 
as ``to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or 
attempt to pursue, hunt, shoot, wound, kill, trap, capture, or 
collect'' (50 CFR 10.12). ``Migratory bird'' means any bird protected 
by any of the treaties and currently includes 1,027 bird species in the 
United States (50 CFR 10.13), regardless of whether the particular 
species actually migrates.
    Of the 1,027 currently protected species, approximately 8% are 
either listed (in whole or in part) as threatened or endangered under 
the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.) and 25% are 
designated (in whole or in part) as Birds of Conservation Concern 
(BCC). BCC species are those birds that, without additional 
conservation actions, are likely to become candidates for listing under 
the ESA. According to the State of the Birds reports by the North 
American Bird Conservation Initiative (NABCI), most bird guilds (groups 
of birds that use the same habitat) are experiencing population 
declines, especially those using arid lands, grasslands, and ocean 
environments. Based on number of species within each guild, more 
raptors and waterbirds are on the ESA and BCC lists, respectively, with 
43 percent and 41 percent of the species on these lists.
    Many natural and anthropogenic sources (any activity, action, or 
component of a project, enterprise, or endeavor) cause bird mortality 
or otherwise contribute to declining populations. Bird habitat is lost 
or degraded every year due to urbanization, energy development, 
agriculture, and forestry practices. These rapidly accelerating impacts 
can be mitigated through a variety of approaches, such as voluntary 
incentives, habitat restoration or protection, and best management 
practices. In addition, millions of birds are directly killed by 
interaction with human structures and activities, such as collisions 
with manmade structures, electrocutions, chemicals, and fisheries 
bycatch. The cumulative effects of these sources of mortality are 
contributing to continental-scale population declines for many species 
(State of the Birds, NABCI 2009, 2010, 2011, 2013, 2014).
    Many of these sources of avian mortality are becoming more 
prevalent across the landscape, and their impacts on bird populations 
are exacerbated by the effects of a changing climate. Birds in every 
habitat will likely be affected by anthropogenic sources and climate 
change, so conserving migratory bird populations will require a 
multifaceted, coordinated approach by governments, conservation 
organizations, industry, and the general public. An incidental take 
authorization program alone will not address all of the conservation 
needs of bird populations, but it could provide a framework to reduce 
existing human-caused mortality of birds and help avoid future impacts 
by promoting practical actions or conservation measures that will help 
industries and agencies avoid and minimize their impacts on birds. An 
authorization system created through rulemaking could encourage 
implementation of appropriate conservation measures to avoid or reduce 
avian mortality, such as the technologies and best management practices 
identified in current Service guidance for certain industry sectors, 
and could create a regulatory mechanism to obtain meaningful 
compensatory mitigation for bird mortality that cannot be avoided or

[[Page 30034]]

minimized through best practices or technologies. Compensatory 
mitigation for incidental take, especially on a watershed or landscape 
basis, can provide conservation benefits through funding of habitat 
replacement, restoration, or, in certain circumstances, acquisition.
    The Service has longstanding regulations found at 50 CFR part 21 
that authorize the issuance of permits to take migratory birds. A 
number of migratory bird regulations authorize purposeful take for a 
variety of purposes, including bird banding and marking, scientific 
collection, bird rehabilitation, raptor propagation, and falconry. 
Consistent with the Service's longstanding position that the MBTA 
applies to take that occurs incidental to, and which is not the purpose 
of, an otherwise lawful activity, we also have authorized incidental 
take by the Armed Forces during military-readiness activities (50 CFR 
21.15) and in certain situations through special use permits described 
in 50 CFR 21.27.
    We are now considering establishing more general authority to 
permit incidental take through general authorizations, individual 
permits, or interagency memoranda of understanding. This regulatory 
process would provide greater certainty for entities that have taken 
efforts to reduce incidental take and significantly benefit bird 
conservation by promoting implementation of appropriate conservation 
measures to avoid or reduce avian mortality. The process would also 
create a regulatory mechanism to obtain meaningful compensatory 
mitigation for bird mortality that cannot be avoided or minimized 
through best practices, risk management processes, or technologies. We 
are considering approaches that will minimize the administrative burden 
of compliance with this regulatory process for industry, other Federal 
agencies, and the Service, and will also consider continuation of our 
current efforts to work with interested industry sectors to develop 
voluntary guidance for avoiding or minimizing incidental take of 
migratory birds. These approaches will not affect 50 CFR 21.15, which 
was issued to allow the Armed Forces to incidentally take migratory 
birds during military-readiness activities.
    We note that should we develop a permit system authorizing and 
limiting incidental take, we would not expect every person or business 
that may incidentally take migratory birds to obtain a permit, nor 
would we intend to expand our judicious use of our enforcement 
authority under the MBTA. The Service focuses its enforcement efforts 
under the MBTA on industries or activities that chronically kill birds 
and has historically pursued criminal prosecution under the Act only 
after notifying an industry of its concerns regarding avian mortality, 
working with the industry to find solutions, and proactively educating 
industry about ways to avoid or minimize take of migratory birds. 
Similarly, our permit program, if implemented, will focus on industries 
and activities that involve significant avian mortality and for which 
reasonable and effective measures to avoid or minimize take exist.

Need for Agency Action

    We seek to provide legal clarity to Federal and State agencies, 
industry, and the public regarding compliance with the MBTA. At the 
same time, we have a legal responsibility under the MBTA and the 
treaties the Act implements to promote the conservation of migratory 
bird populations. We are considering actions, therefore, that can 
provide legal authorization for incidental take of migratory birds 
where authorization is appropriate, will promote adoption of measures 
to avoid or minimize incidental take, and will provide for appropriate 
mitigation, including compensation, for that take.

NEPA Analysis of Potential Incidental Take Authorization Options

    The National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347) 
requires Federal agencies to undertake an assessment of environmental 
effects of any proposed action prior to making a final decision and 
implementing it. NEPA requirements apply to any Federal project, 
decision, or action that may have a significant impact on the quality 
of the human environment. NEPA also established the Council on 
Environmental Quality (CEQ), which issued regulations implementing the 
procedural provisions of NEPA (40 CFR parts 1500-1508). Among other 
considerations, CEQ regulations at 40 CFR 1508.28 recommend the use of 
tiering from a broader environmental impact statement (such as a 
national program or policy statement). Subsequent narrower statements 
or environmental analyses (such as regional or site-specific 
statements) would incorporate by reference the general discussions of 
the previous broad EIS and concentrate solely on the issues specific to 
the narrower statement.
    Consistent with this guidance, we intend to complete a programmatic 
environmental impact statement (PEIS) to consider a number of 
approaches to regulating incidental take of migratory birds. The PEIS 
will address the potential environmental impacts of a range of 
reasonable alternatives for regulating and authorizing incidental take; 
the effectiveness of best practices or measures to mitigate take of 
migratory birds under the MBTA and adverse impacts to migratory bird 
resources; the potential for environmental impacts to non-bird 
resources, such as cultural resources, from measures to protect birds; 
the effects on migratory bird populations of sources of mortality other 
than incidental take; and the effects on migratory bird populations of 
impacts to migratory bird habitat, including, but not limited to, 
climate change. We will address our compliance with other applicable 
authorities in our proposed NEPA review.

Tribal Responsibilities

    The Service has unique responsibilities to tribes including under 
the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d); the 
National Historic Preservation Act (16 U.S.C. 470 et seq.); the 
American Indian Religious Freedom Act (42 U.S.C. 1996); Native American 
Graves Protection and Repatriation Act (25 U.S.C. 3001); Religious 
Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.); Secretarial 
Order 3206, American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the ESA (June 5, 1997): Executive Order 13007, 
Indian Sacred Sites (61 FR 26771, May 29, 1996): and the Service's 
Native American Policy. We apply the terms ``tribal'' or ``tribe(s)'' 
generally to federally recognized tribes and Alaska Native tribal 
entities. We will refer to Native Hawaiian Organizations separately 
when we intend to include those entities. The Service will separately 
consult with tribes and with Native Hawaiians on the proposals set 
forth in this notice of intent. We will also ensure that those tribes 
and Native Hawaiians wishing to engage directly in the NEPA process 
will have the opportunity to do so. As part of this process, we will 
protect the confidential nature of any consultations and other 
communications we have with tribes and Native Hawaiians.

Possible Actions

    We are considering various approaches for authorizing incidental 
take of migratory birds. Each of these regulatory approaches would 
require us to promulgate new regulations under the MBTA, in compliance 
with applicable statutory and Executive Branch requirements for 
rulemaking.

[[Page 30035]]

We will also consider, as an alternative to these regulatory 
approaches, a continuation of our practice of working with interested 
industry sectors to develop voluntary guidance that identifies best 
management practices or technologies that can effectively avoid or 
minimize avian mortality from hazards in those sectors. These 
approaches may be considered separately or in any combination. 
Therefore, the PEIS will consider the effects from each approach, and 
the effects from combined approaches.

General Conditional Authorization for Incidental Take Associated With 
Particular Industry Sectors

    One possible approach would be to establish a general conditional 
authorization for incidental take by certain hazards to birds 
associated with particular industry sectors, provided that those 
industry sectors adhere to appropriate standards for protection and 
mitigation of incidental take of migratory birds. The standards would 
include conservation measures or technologies that have been developed 
to address practices or structures that kill or injure birds. We are 
considering developing authorizations under this approach for a number 
of types of hazards to birds that are associated with particular 
industry sectors, described below. We selected these hazards and 
sectors because we know that they consistently take birds and we have 
substantial knowledge about measures these industries can take to 
prevent or reduce incidental bird deaths. We have a history of working 
with these industry sectors to address associated hazards to birds by 
issuing guidance and reviewing projects at the field level or by 
engaging in collaborative efforts to establish best management 
practices and standards.
     Oil, gas, and wastewater disposal pits can entrap birds 
that are attracted to a perceived source of water. Birds that land on 
or fall into the pit become covered with oil and may ultimately die 
from drowning, exhaustion, exposure, or effects of ingested oil. Closed 
containment systems or properly maintained netting prevents birds from 
entering these sites.
     Methane or other gas burner pipes at oil production sites 
and other locations provide a hazard to birds from burning, entrapment 
in pipes or vents, or direct mortality from flame flare. Removing 
perches, installing perch deterrents, and covering pipes and other 
small openings can minimize this take.
     Communication towers can have a significant impact on 
birds, especially birds migrating at night. Using recommended tower-
siting practices and design features such as appropriate lighting, 
shorter tower heights, and eliminating or reducing the use of guy wires 
can minimize bird take caused by collisions with these structures.
     Electric transmission and distribution lines impact a 
variety of birds through electrocution and collision. To reduce 
electrocutions, poles can be made avian-safe through pole and equipment 
design or through post-construction retrofitting measures. Collisions 
are best minimized through appropriate siting considerations.
    We may seek to develop additional general authorizations in this 
rulemaking for hazards to birds associated with other industry sectors. 
We are considering, for example, whether a general conditional 
authorization can be developed for hazards to birds related to wind 
energy generation, building on guidance we have developed jointly with 
that industry to address avian mortality. We seek input from the public 
and interested parties regarding the issues, environmental impacts, and 
mitigation techniques we should assess if we try to develop a general 
authorization for wind energy generation, and also on whether there are 
additional industry sectors for which general authorization of 
incidental take may be appropriate.

Individual Permits

    A second possible approach would be to establish legal authority 
for issuing individual incidental take permits for projects or 
activities not covered under the described general, conditional 
authorization that present complexities or siting considerations that 
inherently require project-specific considerations, or for which there 
is limited information regarding adverse effects. We are considering 
ways to minimize the administrative burdens of obtaining individual 
incidental take permits for both applicants and the Service, such as 
combining environmental reviews for those permits with reviews being 
conducted for other Federal permits or authorizations. Our intention 
would be only to establish the authority and standards for issuance of 
individual permits in this rulemaking; we do not intend to issue any 
actual individual permits as part of this action. FWS will conduct 
site-specific NEPA reviews in connection with the future issuance of 
any such permit.

Memoranda of Understanding With Federal Agencies

    A third possible approach would be to establish a procedure for 
authorizing incidental take by Federal agencies that commit in a 
memorandum of understanding (MOU) with us to consider impacts to 
migratory birds in their actions and to mitigate that take 
appropriately. We have negotiated MOUs with a number of Federal 
agencies under Executive Order 13186 (66 FR 3853, January 17, 2001), 
but we have not previously sought to authorize incidental take through 
those memoranda. Expanding existing MOUs and negotiating MOUs with 
additional Federal agencies could provide an efficient programmatic 
approach to regulating and authorizing incidental take caused by 
Federal agency programs and activities. We may also consider whether 
MOUs with Federal agencies might provide appropriate vehicles for 
authorizing take by third parties regulated by those agencies, even 
though the agencies themselves are not subject to the prohibitions of 
the MBTA when acting in their regulatory capacities.
    The regulation we envision promulgating would not immediately 
authorize incidental take via existing MOUs, but would allow us to 
develop MOUs with interested agencies to authorize that take in the 
future. We will conduct appropriate NEPA analysis in connection with 
the development of any such memoranda if we pursue this option.

Development of Voluntary Guidance for Industry Sectors

    We will also evaluate an approach that builds on our experience 
working with particular industry sectors to develop voluntary guidance 
that identifies best management practices or technologies that can be 
applied to avoid or minimize avian mortality resulting from specific 
hazards in those sectors. Under this approach, we would continue to 
work closely with interested industry sectors to assess the extent that 
their operations and facilities may pose hazards to migratory birds and 
to evaluate operational approaches or technological measures that can 
avoid or reduce the risk to migratory birds associated with those 
hazards. We would not provide legal authorization for incidental take 
of migratory birds by companies or individuals that comply with any 
such guidance, but would, as a matter of law-enforcement discretion, 
consider the extent to which a company or individual had complied with 
that guidance as a substantial factor in assessing any potential 
enforcement action for violation of the Act.

Public Comments

    We request information from other interested government agencies, 
Native American tribes, Native Hawaiians, the

[[Page 30036]]

scientific community, industry, nongovernmental organizations, and 
other interested parties. We solicit input on the following:
    (1) The approaches we are considering for authorizing incidental 
take;
    (2) The specific types of hazards to birds associated with 
particular industry sectors that could be covered under general 
permits;
    (3) Potential approaches to mitigate and compensate for the take of 
migratory birds;
    (4) Other approaches, or combinations of approaches, we should 
consider with respect to the regulation and authorization of incidental 
take;
    (5) Specific requirements for NEPA analyses related to these 
actions;
    (6) Whether the actions we consider should distinguish between 
existing and new industry facilities and activities;
    (7) Considerations for evaluating the significance of impacts to 
migratory birds and to other affected resources, such as cultural 
resources;
    (8) Information regarding natural resources that may be affected by 
the proposal;
    (9) Considerations for evaluating the interactions between affected 
natural resources;
    (10) The benefits provided by current Federal programs to conserve 
migratory birds and the additional benefits that would be provided by a 
program to authorize incidental take;
    (11) The potential costs to comply with the actions under 
consideration, including those borne by the Federal government and 
private sectors;
    (12) The baseline for quantifying the costs and benefits of the 
proposal;
    (13) Bird species having religious or cultural significance for 
tribes, bird species having religious or cultural significance for the 
general public, and impacts to cultural values from the actions being 
considered;
    (14) Considerations for evaluating climate change effects to 
migratory bird resources and to other affected resources, such as 
cultural resources; and
    (15) How to integrate existing guidance and plans, such as Avian 
Protection Plans, into the proposed regulatory framework.
    You may submit your comments and materials by one of the methods 
described above under ADDRESSES at the beginning of this notice of 
intent.

Public Availability of Comments

    Written comments we receive become part of the public record 
associated with this action. Your address, phone number, email address, 
or other personal identifying information that you include in your 
comment may become publicly available. You may ask us to withhold your 
personal identifying information from public review, but we cannot 
guarantee that we will be able to do so. All submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, will be made available for public disclosure in their 
entirety.

Authority

    The authorities for this action are the MBTA, NEPA, and Executive 
Order 13186, Responsibilities of Federal Agencies to Protect Migratory 
Birds.

    Dated: May 20, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-12666 Filed 5-22-15; 8:45 am]
 BILLING CODE 4310-55-P