Migratory Bird Permits; Regulations Governing Take of Migratory Birds; Environmental Impact Statement, 5913-5915 [2020-01770]

Download as PDF lotter on DSKBCFDHB2PROD with PROPOSALS Federal Register / Vol. 85, No. 22 / Monday, February 3, 2020 / Proposed Rules 5913 the human environment. This proposed rule involves a safety zone lasting from March 2, 2020 through March 20, 2020 from mile 28.0 to mile 30.0 on the Monongahela River near Pittsburgh, PA. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023–01– 001–01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. website’s instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published. A.W. Demo, Commander, U.S. Coast Guard, Captain of the Port Marine Safety Unit Pittsburgh. List of Subjects in 33 CFR Part 165 [FR Doc. 2020–01920 Filed 1–31–20; 8:45 am] G. Protest Activities The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels. ■ V. Public Participation and Request for Comments We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. We encourage you to submit comments through the Federal eRulemaking Portal at https:// www.regulations.gov. If your material cannot be submitted using https:// www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. We accept anonymous comments. All comments received will be posted without change to https:// www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS’s Correspondence System of Records notice (84 FR 48645, September 26, 2018). Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that VerDate Sep<11>2014 16:36 Jan 31, 2020 Jkt 250001 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T08–0057 to read as follows: ■ § 165.T08–0057 Safety Zone; Monongahela, Mile 28.0 to Mile 30.0, Pittsburgh, PA. (a) Location. The following area is a safety zone: all navigable waters of the Monongahela River from mile 28.0 to mile 30.0. (b) Effective period. This section is effective from March 2, 2020 through March 20, 2020. (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry of persons and vessels into this zone is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative. (2) Persons or vessels requiring entry into or passage through the zone must request permission from the COTP or a designated representative. The COTP’s representative may be contacted at 412– 221–0807. (3) All persons and vessels shall comply with the instructions of the COTP or a designated representative. Designated COTP representatives include United States Coast Guard commissioned, warrant, and petty officer. (d) Information broadcasts. The Captain COTP or a designated representative will inform the public through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 Information Bulletins (MSIBs), as appropriate. BILLING CODE 9110–04–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 10 [Docket No. FWS–HQ–MB–2018–0090; FF09M29000–201–FXMB12320900000] RIN 1018–BD76 Migratory Bird Permits; Regulations Governing Take of Migratory Birds; Environmental Impact Statement Fish and Wildlife Service, Interior. ACTION: Supplementary proposed rule; intent to prepare an environmental impact statement. AGENCY: This document advises that we, the U.S. Fish and Wildlife Service (Service), intend to prepare a draft environmental impact statement pursuant to the National Environmental Policy Act of 1969 (NEPA). The Service hereby notifies Federal, State, and local agencies, tribes, and the public of our intentions to evaluate the potential environmental impacts of a proposal to adopt a regulation that clarifies that the Migratory Bird Treaty Act’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same, apply only to actions directed at migratory birds, their nests, or their eggs, and, therefore, do not extend to incidental take, which occurs when injury or mortality to migratory birds results from, but is not the purpose of, an activity. The review will analyze the environmental effects of the proposed approach and will provide detailed analysis of the environmental effects of the proposed rule. We invite input from other Federal and State agencies, tribes, nongovernmental organizations, and members of the public on the scope of the proposed NEPA analysis, the pertinent issues we should address, and alternatives to our proposed approach for implementing the MBTA. We will hold multiple public scoping webinars to inform the public about the proposal. DATES: Comment submission: Public scoping will begin with the publication of this document in the Federal Register and will continue through March 19, 2020. SUMMARY: E:\FR\FM\03FEP1.SGM 03FEP1 5914 Federal Register / Vol. 85, No. 22 / Monday, February 3, 2020 / Proposed Rules We will consider all comments on the scope of the draft environmental review that are received or postmarked by that date. Comments received or postmarked after that date will be considered to the extent practicable. Public scoping meetings: We will hold public scoping meetings in the form of multiple webinars in February/March 2020. We will announce exact webinar dates, times, and registration details on the internet at https://fws.gov/ migratorybirds/2020Regulation.php. ADDRESSES: Comment submission: You may submit written comments by one of the following methods. Please do not submit comments by both. (1) Electronically: Go to the Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS–HQ–MB–2018–0090. (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–HQ–MB–2018– 0090; U.S. Fish and Wildlife Service; MS: JAO/1N; 5275 Leesburg Pike; Falls Church, VA 22041–3803. We do not accept email or faxes. We will post all comments on http:// www.regulations.gov, including any personal information you provide. Document availability: The proposed rule and supplementary materials will be available at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS–HQ–MB–2018–0090. FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director, Migratory Birds, U.S. Fish and Wildlife Service at 202–208–1050. SUPPLEMENTARY INFORMATION: lotter on DSKBCFDHB2PROD with PROPOSALS Background The Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703–12) was enacted in 1918 to help fulfill the United States’ obligations under the 1916 ‘‘Convention between the United States and Great Britain for the protection of Migratory Birds,’’ 39 Stat. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). The list of migratory birds protected by the MBTA is currently codified in title 50 of the Code of Federal Regulations at 50 CFR 10.13. In its current form, section 2(a) of the MBTA (16 U.S.C. 703(a)) provides that, unless permitted by regulations, it is unlawful: at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, VerDate Sep<11>2014 16:36 Jan 31, 2020 Jkt 250001 transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof. Section 3(a) of the MBTA (16 U.S.C. 704(a)) authorizes and directs the Secretary of the Interior to ‘‘adopt suitable regulations’’ allowing ‘‘hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg thereof’’ while considering (‘‘having due regard to’’) temperature zones and ‘‘distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds.’’ Section 3(a) also requires the Secretary to ‘‘determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions’’ to adopt such regulations allowing these otherwiseprohibited activities. On December 22, 2017, the Principal Deputy Solicitor of the Department of the Interior, exercising the authority of the Solicitor pursuant to Secretary’s Order 3345, issued a legal opinion, M– 37050, ‘‘The Migratory Bird Treaty Act Does Not Prohibit Incidental Take’’ (M– 37050 or M-Opinion). This opinion thoroughly examined the text, history, and purpose of the MBTA and concluded that the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions directed at migratory birds, their nests, or their eggs. This opinion is consistent with the Fifth Circuit’s decision in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), which examined whether the MBTA prohibits incidental take. It also marked a change from prior U.S. Fish and Wildlife Service interpretations and an earlier Solicitor’s Opinion, M–37041, ‘‘Incidental Take Prohibited Under the Migratory Bird Treaty Act.’’ The Office of the Solicitor performs the legal work for the Department of the Interior, including the U.S. Fish and Wildlife Service. The Service is the Federal agency delegated the primary responsibility for managing migratory birds. Need for Proposed Agency Action The Service proposes to interpret the MBTA to prohibit only actions directed at migratory birds, their nests, or their eggs, and to clarify that incidental take is not prohibited. The purpose of this action is to provide an official regulatory definition of the scope of the statute as it relates to incidental take. PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 The Service needs to conduct this action to improve consistency in enforcement of the MBTA’s prohibitions across the country and thereby eliminate public uncertainty caused by the current patchwork of legal standards across the different Circuit Courts of Appeal, which have reached different conclusions on the central question of whether the MBTA prohibits incidental take. This approach also aligns with and implements the Department’s interpretation of the MBTA in M–37050. NEPA Analysis of Potential Codification of the Solicitor’s Opinion Options The National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321– 4347) requires Federal agencies to undertake an assessment of the 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, which issued regulations implementing the procedural provisions of NEPA (40 CFR 1500–1508). We intend to complete an environmental impact statement to assess the impacts of codifying the Solicitor’s Opinion, M–37050 and the effects on migratory bird populations of mortality resulting from incidental take. We will address our compliance with other applicable authorities in our proposed environmental review. Tribal Trust Responsibilities The Service has overarching Tribal Trust Doctrine responsibilities to tribes 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); the 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 Endangered Species Act (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 the proposed rule. We will also ensure that those tribes and Native E:\FR\FM\03FEP1.SGM 03FEP1 Federal Register / Vol. 85, No. 22 / Monday, February 3, 2020 / Proposed Rules lotter on DSKBCFDHB2PROD with PROPOSALS 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 to the extent authorized by law. Public Scoping and Comments See DATES for information about upcoming scoping webinars. Please note that the Service will ensure that the public scoping webinars will be accessible to members of the public with disabilities. A primary purpose of the scoping process is to receive suggestions and information on the scope of issues and alternatives to consider when drafting the environmental documents and to identify significant issues and reasonable alternatives related to the Service’s proposed action. To ensure that we identify a range of issues and alternatives related to the proposed action, we invite comments and suggestions from all interested parties. We will conduct a review of this proposed action according to the requirements of NEPA and its regulations, other relevant Federal laws, regulations, policies, and guidance, and our procedures for compliance with applicable regulations. We request information from interested government agencies, Native American tribes, Native Hawaiian Organizations, the scientific community, industry, nongovernmental organizations, and other interested parties. We solicit input on the following: (1) The avoidance, minimization, and mitigation measures entities employed to address incidental take of migratory birds (prior to M-Opinion 37050); (2) The direct costs associated with implementing these measures; (3) The indirect costs that entities have incurred related to the legal risk of prosecution for incidental take of migratory birds (e.g., legal fees, increased interest rates on financing, insurance, opportunity costs); (4) The extent that avoidance, minimization, and mitigation measures continue to be used (after issuance of MOpinion 37050); (5) Any quantitative information regarding the economic benefits and/or ecosystem services (e.g., pollination, pest control, etc.) provided by migratory birds; (6) Information regarding resources that may be affected by the proposal; and (7) Species having religious or cultural significance for tribes and VerDate Sep<11>2014 16:36 Jan 31, 2020 Jkt 250001 Native Hawaiian Organizations, and species having cultural significance for the general public and impacts to cultural values from the actions being considered. You may submit your comments and materials by one of the methods described above under ADDRESSES. Once the draft environmental documents are completed, we will offer further opportunities for public comment. 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 Migratory Bird Treaty Act (16 U.S.C. 703–712) and the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Dated: January 6, 2020. Rob Wallace, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2020–01770 Filed 1–31–20; 8:45 am] BILLING CODE 4333–15–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 10 [Docket No. FWS–HQ–MB–2018–0090; FF09M29000–156–FXMB1232090BPP0] RIN 1018–BD76 Regulations Governing Take of Migratory Birds Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service (FWS, Service, we), propose to adopt a regulation that defines the scope of the Migratory Bird Treaty Act (MBTA or Act) as it applies to conduct resulting in the injury or death of migratory birds protected by SUMMARY: PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 5915 the Act. This proposed rule is consistent with the Solicitor’s Opinion, M–37050, which concludes that the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same, apply only to actions directed at migratory birds, their nests, or their eggs. DATES: We will accept written comments on this proposed rule until March 19, 2020. ADDRESSES: You may submit comments by either one of the following methods. Please do not submit comments by both. • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS–HQ–MB–2018–0090. • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–HQ– MB–2018–0090; U.S. Fish and Wildlife Service; MS: JAO/1N; 5275 Leesburg Pike, Falls Church, VA 22041–3803. We will not accept email or faxes. We will post all comments on http:// www.regulations.gov, including any personal information you provide. See Public Comments, below, for more information. FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director, Migratory Birds, at 202–208–1050. SUPPLEMENTARY INFORMATION: Background The Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703 et seq.) was enacted in 1918 to help fulfill the United States’ obligations under the 1916 ‘‘Convention between the United States and Great Britain for the protection of Migratory Birds.’’ 39 Stat. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). The list of applicable migratory birds protected by the MBTA is currently codified in title 50 of the Code of Federal Regulations at 50 CFR 10.13. In its current form, section 2(a) of the MBTA provides that, unless permitted by regulations, it is unlawful: at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof. 16 U.S.C. 703(a). Section 3(a) of the MBTA authorizes and directs the Secretary of the Interior E:\FR\FM\03FEP1.SGM 03FEP1

Agencies

[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Proposed Rules]
[Pages 5913-5915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01770]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 10

[Docket No. FWS-HQ-MB-2018-0090; FF09M29000-201-FXMB12320900000]
RIN 1018-BD76


Migratory Bird Permits; Regulations Governing Take of Migratory 
Birds; Environmental Impact Statement

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Supplementary proposed rule; intent to prepare an environmental 
impact statement.

-----------------------------------------------------------------------

SUMMARY: This document advises that we, the U.S. Fish and Wildlife 
Service (Service), intend to prepare a draft environmental impact 
statement pursuant to the National Environmental Policy Act of 1969 
(NEPA). The Service hereby notifies Federal, State, and local agencies, 
tribes, and the public of our intentions to evaluate the potential 
environmental impacts of a proposal to adopt a regulation that 
clarifies that the Migratory Bird Treaty Act's prohibitions on 
pursuing, hunting, taking, capturing, killing, or attempting to do the 
same, apply only to actions directed at migratory birds, their nests, 
or their eggs, and, therefore, do not extend to incidental take, which 
occurs when injury or mortality to migratory birds results from, but is 
not the purpose of, an activity. The review will analyze the 
environmental effects of the proposed approach and will provide 
detailed analysis of the environmental effects of the proposed rule. We 
invite input from other Federal and State agencies, tribes, 
nongovernmental organizations, and members of the public on the scope 
of the proposed NEPA analysis, the pertinent issues we should address, 
and alternatives to our proposed approach for implementing the MBTA. We 
will hold multiple public scoping webinars to inform the public about 
the proposal.

DATES: 
    Comment submission: Public scoping will begin with the publication 
of this document in the Federal Register and will continue through 
March 19, 2020.

[[Page 5914]]

We will consider all comments on the scope of the draft environmental 
review that are received or postmarked by that date. Comments received 
or postmarked after that date will be considered to the extent 
practicable.
    Public scoping meetings: We will hold public scoping meetings in 
the form of multiple webinars in February/March 2020. We will announce 
exact webinar dates, times, and registration details on the internet at 
https://fws.gov/migratorybirds/2020Regulation.php.

ADDRESSES: 
    Comment submission: You may submit written comments by one of the 
following methods. Please do not submit comments by both.
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to 
Docket No. FWS-HQ-MB-2018-0090.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-HQ-MB-2018-0090; U.S. Fish and Wildlife 
Service; MS: JAO/1N; 5275 Leesburg Pike; Falls Church, VA 22041-3803.
    We do not accept email or faxes. We will post all comments on 
http://www.regulations.gov, including any personal information you 
provide.
    Document availability: The proposed rule and supplementary 
materials will be available at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090.

FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director, 
Migratory Birds, U.S. Fish and Wildlife Service at 202-208-1050.

SUPPLEMENTARY INFORMATION:

Background

    The Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-12) was enacted 
in 1918 to help fulfill the United States' obligations under the 1916 
``Convention between the United States and Great Britain for the 
protection of Migratory Birds,'' 39 Stat. 1702 (Aug. 16, 1916) 
(ratified Dec. 7, 1916) (Migratory Bird Treaty). The list of migratory 
birds protected by the MBTA is currently codified in title 50 of the 
Code of Federal Regulations at 50 CFR 10.13.
    In its current form, section 2(a) of the MBTA (16 U.S.C. 703(a)) 
provides that, unless permitted by regulations, it is unlawful:

at any time, by any means or in any manner, to pursue, hunt, take, 
capture, kill, attempt to take, capture, or kill, possess, offer for 
sale, sell, offer to barter, barter, offer to purchase, purchase, 
deliver for shipment, ship, export, import, cause to be shipped, 
exported, or imported, deliver for transportation, transport or 
cause to be transported, carry or cause to be carried, or receive 
for shipment, transportation, carriage, or export, any migratory 
bird, any part, nest, or egg of any such bird, or any product, 
whether or not manufactured, which consists, or is composed in whole 
or part, of any such bird or any part, nest, or egg thereof.

Section 3(a) of the MBTA (16 U.S.C. 704(a)) authorizes and directs the 
Secretary of the Interior to ``adopt suitable regulations'' allowing 
``hunting, taking, capture, killing, possession, sale, purchase, 
shipment, transportation, carriage, or export of any such bird, or any 
part, nest, or egg thereof'' while considering (``having due regard 
to'') temperature zones and ``distribution, abundance, economic value, 
breeding habits, and times and lines of migratory flight of such 
birds.'' Section 3(a) also requires the Secretary to ``determine when, 
to what extent, if at all, and by what means, it is compatible with the 
terms of the conventions'' to adopt such regulations allowing these 
otherwise-prohibited activities.
    On December 22, 2017, the Principal Deputy Solicitor of the 
Department of the Interior, exercising the authority of the Solicitor 
pursuant to Secretary's Order 3345, issued a legal opinion, M-37050, 
``The Migratory Bird Treaty Act Does Not Prohibit Incidental Take'' (M-
37050 or M-Opinion). This opinion thoroughly examined the text, 
history, and purpose of the MBTA and concluded that the MBTA's 
prohibitions on pursuing, hunting, taking, capturing, killing, or 
attempting to do the same apply only to actions directed at migratory 
birds, their nests, or their eggs. This opinion is consistent with the 
Fifth Circuit's decision in United States v. CITGO Petroleum Corp., 801 
F.3d 477 (5th Cir. 2015), which examined whether the MBTA prohibits 
incidental take. It also marked a change from prior U.S. Fish and 
Wildlife Service interpretations and an earlier Solicitor's Opinion, M-
37041, ``Incidental Take Prohibited Under the Migratory Bird Treaty 
Act.'' The Office of the Solicitor performs the legal work for the 
Department of the Interior, including the U.S. Fish and Wildlife 
Service. The Service is the Federal agency delegated the primary 
responsibility for managing migratory birds.

Need for Proposed Agency Action

    The Service proposes to interpret the MBTA to prohibit only actions 
directed at migratory birds, their nests, or their eggs, and to clarify 
that incidental take is not prohibited. The purpose of this action is 
to provide an official regulatory definition of the scope of the 
statute as it relates to incidental take. The Service needs to conduct 
this action to improve consistency in enforcement of the MBTA's 
prohibitions across the country and thereby eliminate public 
uncertainty caused by the current patchwork of legal standards across 
the different Circuit Courts of Appeal, which have reached different 
conclusions on the central question of whether the MBTA prohibits 
incidental take. This approach also aligns with and implements the 
Department's interpretation of the MBTA in M-37050.

NEPA Analysis of Potential Codification of the Solicitor's Opinion 
Options

    The National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 
4321-4347) requires Federal agencies to undertake an assessment of the 
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, which issued regulations implementing the 
procedural provisions of NEPA (40 CFR 1500-1508).
    We intend to complete an environmental impact statement to assess 
the impacts of codifying the Solicitor's Opinion, M-37050 and the 
effects on migratory bird populations of mortality resulting from 
incidental take. We will address our compliance with other applicable 
authorities in our proposed environmental review.

Tribal Trust Responsibilities

    The Service has overarching Tribal Trust Doctrine responsibilities 
to tribes 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); the 
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 Endangered Species Act (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 the proposed rule. We will also ensure that 
those tribes and Native

[[Page 5915]]

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 to the extent authorized by law.

Public Scoping and Comments

    See DATES for information about upcoming scoping webinars. Please 
note that the Service will ensure that the public scoping webinars will 
be accessible to members of the public with disabilities. A primary 
purpose of the scoping process is to receive suggestions and 
information on the scope of issues and alternatives to consider when 
drafting the environmental documents and to identify significant issues 
and reasonable alternatives related to the Service's proposed action. 
To ensure that we identify a range of issues and alternatives related 
to the proposed action, we invite comments and suggestions from all 
interested parties. We will conduct a review of this proposed action 
according to the requirements of NEPA and its regulations, other 
relevant Federal laws, regulations, policies, and guidance, and our 
procedures for compliance with applicable regulations.
    We request information from interested government agencies, Native 
American tribes, Native Hawaiian Organizations, the scientific 
community, industry, nongovernmental organizations, and other 
interested parties. We solicit input on the following:
    (1) The avoidance, minimization, and mitigation measures entities 
employed to address incidental take of migratory birds (prior to M-
Opinion 37050);
    (2) The direct costs associated with implementing these measures;
    (3) The indirect costs that entities have incurred related to the 
legal risk of prosecution for incidental take of migratory birds (e.g., 
legal fees, increased interest rates on financing, insurance, 
opportunity costs);
    (4) The extent that avoidance, minimization, and mitigation 
measures continue to be used (after issuance of M-Opinion 37050);
    (5) Any quantitative information regarding the economic benefits 
and/or ecosystem services (e.g., pollination, pest control, etc.) 
provided by migratory birds;
    (6) Information regarding resources that may be affected by the 
proposal; and
    (7) Species having religious or cultural significance for tribes 
and Native Hawaiian Organizations, and species having cultural 
significance for the general public and impacts to cultural values from 
the actions being considered.
    You may submit your comments and materials by one of the methods 
described above under ADDRESSES. Once the draft environmental documents 
are completed, we will offer further opportunities for public comment.

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 Migratory Bird Treaty Act 
(16 U.S.C. 703-712) and the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.).

    Dated: January 6, 2020.
Rob Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-01770 Filed 1-31-20; 8:45 am]
 BILLING CODE 4333-15-P