Regulations Governing Take of Migratory Birds, 1134-1165 [2021-00054]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 86, Number 4 (Thursday, January 7, 2021)]
[Rules and Regulations]
[Pages 1134-1165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00054]



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Vol. 86

Thursday,

No. 4

January 7, 2021

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 10





Regulations Governing Take of Migratory Birds; Final Rule

Federal Register / Vol. 86 , No. 4 / Thursday, January 7, 2021 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 10

[Docket No. FWS-HQ-MB-2018-0090; FF09M22000-201-FXMB1231090BPP0]
RIN 1018-BD76


Regulations Governing Take of Migratory Birds

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS, Service, we), 
define 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 the Act. We determine 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: This rule is effective February 8, 2021.

ADDRESSES: Public comments submitted on the proposed rule and 
supplementary documents to the proposed rule, including the 
environmental impact statement and regulatory impact analysis, may be 
found at the Federal rulemaking portal https://www.regulations.gov in 
Docket No. FWS-HQ-MB-2018-0090.

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 in relevant part 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 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.'' 16 U.S.C. 704(a). 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 [listed in section 2 
between the United States and Canada, Mexico, Russia, and Japan]'' to 
adopt such regulations allowing these otherwise-prohibited activities. 
Id.; see also Convention between the United States and Great Britain 
for the Protection of Migratory Birds, U.S.-Gr. Brit., Aug. 16, 1916, 
39 Stat. 1702, amended by the Protocol between the United States and 
Canada Amending the 1916 Convention for the Protection of Migratory 
Birds in Canada and the United States, U.S.-Can., Dec. 14, 1995, 
T.I.A.S. 12721; Convention between the United States of America and 
Mexico for the Protection of Migratory Birds and Game Mammals, U.S.-
Mex., Feb. 7, 1936, 50 Stat. 1311, and Agreement Supplementing the 
Agreement of February 7, 1936, U.S.-Mex., Mar. 10, 1972, 23 U.S.T. 260; 
Convention between the Government of the United States of America and 
the Government of Japan for the Protection of Migratory Birds and Birds 
in Danger of Extinction, and their Environment, U.S.-Japan, Mar. 4, 
1972, 25 U.S.T. 3329; and Convention between the United States of 
American and the Union of Soviet Socialist Republics Concerning the 
Conservation of Migratory Birds and their Environment, U.S.-U.S.S.R., 
Nov. 19, 1976, 29 U.S.T. 4647.
    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). The Solicitor's interpretation 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 (hereafter ``Service''). The Service 
is the Federal agency delegated the primary responsibility for managing 
migratory birds.
    M-37050 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 that are directed at migratory birds, their nests, or their 
eggs. On August 11, 2020, a district court vacated M-37050, holding 
that the language of the MBTA plainly prohibits incidental take, 
despite multiple courts failing to agree on how to interpret the 
relevant statutory language. Natural Res. Defense Council v. U.S. Dep't 
of the Interior, 2020 WL 4605235 (S.D.N.Y.). The Department of Justice 
filed a notice of appeal on October 8, 2020. We respectfully disagree 
with the district court's decision and have addressed the court's 
findings where appropriate in the discussion below. Moreover, M-37050 
is consistent with the Fifth Circuit appellate court decision in United 
States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), which 
held that the MBTA does not prohibit incidental take.
    This rule addresses the Service's responsibilities under the MBTA. 
Consistent with the language and legislative history of the MBTA, as 
amended, and relevant case law, the Service defines the scope of the 
MBTA's prohibitions to reach only actions directed at migratory birds, 
their nests, or their eggs.

Provisions of the Final Rule

Scope of the Migratory Bird Treaty Act

    As a matter of both law and policy, the Service hereby adopts the 
conclusion of M-37050 in a regulation defining the scope of the MBTA. 
M-37050 is available on the internet at the Federal eRulemaking Portal: 
https://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090 and at 
https://www.doi.gov/solicitor/opinions.
    The text and purpose of the MBTA indicate that the MBTA's 
prohibitions on pursuing, hunting, taking, capturing, killing, or 
attempting to do the same only criminalize actions that are 
specifically directed at migratory birds, their nests, or their eggs.

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    The relevant portion of the MBTA reads, ``it shall be unlawful at 
any time, by any means or in any manner, to pursue, hunt, take, 
capture, kill, attempt to take, capture, or kill . . . any migratory 
bird, [or] any part, nest, or egg of any such bird.'' 16 U.S.C. 703(a). 
Of the five referenced verbs, three--pursue, hunt, and capture--
unambiguously require an action that is directed at migratory birds, 
nests, or eggs. To wit, according to the entry for each word in a 
contemporary dictionary:
     Pursue means ``[t]o follow with a view to overtake; to 
follow eagerly, or with haste; to chase.'' Webster's Revised Unabridged 
Dictionary 1166 (1913);
     Hunt means ``[t]o search for or follow after, as game or 
wild animals; to chase; to pursue for the purpose of catching or 
killing.'' Id. at 713; and
     Capture means ``[t]o seize or take possession of by force, 
surprise, or stratagem; to overcome and hold; to secure by effort.'' 
Id. at 215.
    Thus, one does not passively or accidentally pursue, hunt, or 
capture. Rather, each requires a deliberate action specifically 
directed at achieving a goal.
    By contrast, the verbs ``kill'' and ``take'' are ambiguous in that 
they could refer to active or passive conduct, depending on the 
context. See id. at 813 (``kill'' may mean the more active ``to put to 
death; to slay'' or serve as the general term for depriving of life); 
id. at 1469 (``take'' has many definitions, including the more passive 
``[t]o receive into one's hold, possession, etc., by a voluntary act'' 
or the more active ``[t]o lay hold of, as in grasping, seizing, 
catching, capturing, adhering to, or the like; grasp; seize;--implying 
or suggesting the use of physical force'').
    Any ambiguity inherent in the statute's use of the terms ``take'' 
and ``kill'' is resolved by applying established rules of statutory 
construction. First and foremost, when any words ``are associated in a 
context suggesting that the words have something in common, they should 
be assigned a permissible meaning that makes them similar.'' Antonin 
Scalia & Bryan A. Garner, Reading the Law: The interpretation of Legal 
Texts, 195 (2012); see also Third Nat'l Bank v. Impac, Ltd., 432 U.S. 
312, 321 (1977) (``As always, `[t]he meaning of particular phrases must 
be determined in context' . . . .'' (quoting SEC v. Nat'l Sec., Inc., 
393 U.S. 453, 466 (1969)); Beecham v. United States, 511 U.S. 368, 371 
(1994) (the fact that ``several items in a list share an attribute 
counsels in favor of interpreting the other items as possessing that 
attribute as well''). Section 2 of the MBTA groups together five 
verbs--``pursue,'' ``hunt,'' ``take,'' ``capture,'' and ``kill.'' 
Accordingly, the statutory construction canon of noscitur a sociis 
(``it is known by its associates'') counsels in favor of reading each 
verb to have a related meaning. See Scalia & Garner at 195 (``The canon 
especially holds that `words grouped in a list should be given related 
meanings.''' (quoting Third Nat'l Bank, 432 U.S. at 322)).
    Thus, when read together with the other active verbs in section 2 
of the MBTA, the proper meaning is evident. The operative verbs 
(``pursue, hunt, take, capture, kill'') ``are all affirmative acts . . 
. which are directed immediately and intentionally against a particular 
animal--not acts or omissions that indirectly and accidentally cause 
injury to a population of animals.'' Sweet Home, 515 U.S. at 719-20 
(Scalia, J., dissenting) (agreeing with the majority opinion that 
certain terms in the definition of the term ``take'' in the Endangered 
Species Act (ESA)--identical to the other prohibited acts referenced in 
the MBTA--refer to deliberate actions, while disagreeing that the use 
of the additional definitional term ``harm''--used only in the ESA--
meant that ``take'' should be read more broadly to include actions not 
deliberately directed at covered species); see also United States v. 
CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. 2015) (``Even 
if `kill' does have independent meaning [from `take'], the Supreme 
Court, interpreting a similar list in the [Endangered Species Act], 
concluded that the terms pursue, hunt, shoot, wound, kill, trap, 
capture, and collect, generally refer to deliberate actions''); cf. 
Sweet Home, 515 U.S. at 698 n.11 (Congress's decision to specifically 
define ``take'' in the ESA obviated the need to define its common-law 
meaning). We explain the meaning of the terms ``take'' and ``kill'' in 
the context of section 2 in turn below.
    The notion that ``take'' refers to an action directed immediately 
against a particular animal is supported by the use of the word 
``take'' in the common law. As the Supreme Court has instructed, 
``absent contrary indications, Congress intends to adopt the common law 
definition of statutory terms.'' United States v. Shabani, 513 U.S. 10, 
13 (1994). As Justice Scalia noted, ``the term [`take'] is as old as 
the law itself.'' Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting). 
For example, the Digest of Justinian places ``take'' squarely in the 
context of acquiring dominion over wild animals, stating:

    [A]ll the animals which can be taken upon the earth, in the sea, 
or in the air, that is to say, wild animals, belong to those who 
take them. . . . Because that which belongs to nobody is acquired by 
the natural law by the person who first possesses it. We do not 
distinguish the acquisition of these wild beasts and birds by 
whether one has captured them on his own property [or] on the 
property of another; but he who wishes to enter into the property of 
another to hunt can be readily prevented if the owner knows his 
purpose to do so.

    Geer v. Connecticut, 161 U.S. 519, 523 (1896) (quoting Digest, Book 
41, Tit. 1, De Adquir. Rer. Dom.). Likewise, Blackstone's Commentaries 
provide:

    A man may lastly have a qualified property in animals feroe 
naturoe, propter privilegium, that is, he may have the privilege of 
hunting, taking and killing them in exclusion of other persons. Here 
he has a transient property in these animals usually called game so 
long as they continue within his liberty, and may restrain any 
stranger from taking them therein; but the instant they depart into 
another liberty, this qualified property ceases.

Id. at 526-27 (1896) (quoting 2 Blackstone Commentary 410).
    Dictionary definitions of the term ``take'' at the time of MBTA 
enactment were consistent with this historical use in the context of 
hunting and capturing wildlife. For example, Webster's defined ``take'' 
to comprise various actions directed at reducing a desired object to 
personal control: ``to lay hold of; to seize with the hands, or 
otherwise; to grasp; to get into one's hold or possession; to procure; 
to seize and carry away; to convey.'' Webster's Revised Unabridged 
Dictionary 1469 (1913).
    Thus, under common law ``[t]o `take,' when applied to wild animals, 
means to reduce those animals, by killing or capturing, to human 
control.'' Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting); see 
also CITGO, 801 F.3d at 489 (``Justice Scalia's discussion of `take' as 
used in the Endangered Species Act is not challenged here by the 
government . . . because Congress gave `take' a broader meaning for 
that statute.''). As is the case with the ESA, in the MBTA, ``[t]he 
taking prohibition is only part of the regulatory plan . . ., which 
covers all stages of the process by which protected wildlife is reduced 
to man's dominion and made the object of profit,'' and, as such, is ``a 
term of art deeply embedded in the statutory and common law concerning 
wildlife'' that ``describes a class of acts (not omissions) done 
directly and intentionally (not indirectly and by accident) to 
particular animals (not populations of animals).'' Sweet Home, 515 U.S. 
at 718 (Scalia, J., dissenting). The common-law meaning of the term 
``take'' is particularly important here because, unlike the ESA, which 
specifically defines the term

[[Page 1136]]

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

[[Page 1137]]

results in the death of a bird. In making that assumption, M-37041 
improperly ignored the meaning and context of the actual acts 
prohibited by the statute. Instead, the opinion presumed that the lack 
of a mental state requirement for a misdemeanor violation of the MBTA 
equated to reading the prohibited acts ``kill'' and ``take'' as broadly 
applying to actions not specifically directed at migratory birds, so 
long as the result is their death or injury. However, the relevant acts 
prohibited by the MBTA are voluntary acts directed at killing or 
reducing an animal to human control, such as when a hunter shoots a 
protected bird causing its death. The key remains that the actor was 
engaged in an activity the object of which was to kill or render a bird 
subject to human control.
    By contrast, liability fails to attach to actions that are not 
directed toward rendering an animal subject to human control. Common 
examples of such actions include driving a car, allowing a pet cat to 
roam outdoors, or erecting a windowed building. All of these actions 
could foreseeably result in the deaths of protected birds, and all 
would be violations of the MBTA under the now-withdrawn M-Opinion if 
they did in fact result in deaths of protected birds, yet none of these 
actions have as their object rendering any animal subject to human 
control. Because no ``take'' has occurred within the meaning of the 
MBTA, the strict-liability provisions of the Act would not be 
triggered.
    The prior M-Opinion posited that amendments to the MBTA imposing 
mental state requirements for specific offenses were only necessary if 
no mental state is otherwise required. However, the conclusion that the 
taking and killing of migratory birds is a strict-liability crime does 
not answer the separate question of what acts are criminalized under 
the statute. The Fifth Circuit in CITGO stated, ``we disagree that 
because misdemeanor MBTA violations are strict liability crimes, a 
`take' includes acts (or omissions) that indirectly or accidentally 
kill migratory birds.'' The court goes on to note that ``[a] person 
whose car accidentally collided with the bird . . . has committed no 
act `taking' the bird for which he could be held strictly liable. Nor 
do the owners of electrical lines `take' migratory birds who run into 
them. These distinctions are inherent in the nature of the word 
`taking' and reveal the strict liability argument as a non-sequitur.'' 
801 F.3d at 493. Similarly, in Mahler v. U.S. Forest Serv., 927 F. 
Supp. 1559 (S.D. Ind. 1996), the court described the interplay between 
activities that are specifically directed at birds and the strict 
liability standard of the MBTA:

    [A comment in the legislative history] in favor of strict 
liability does not show any intention on the part of Congress to 
extend the scope of the MBTA beyond hunting, trapping, poaching, and 
trading in birds and bird parts to reach any and all human activity 
that might cause the death of a migratory bird. Those who engage in 
such activity and who accidentally kill a protected migratory bird 
or who violate the limits on their permits may be charged with 
misdemeanors without proof of intent to kill a protected bird or 
intent to violate the terms of a permit. That does not mean, 
however, that Congress intended for ``strict liability'' to apply to 
all forms of human activity, such as cutting a tree, mowing a 
hayfield, or flying a plane. The 1986 amendment and corresponding 
legislative history reveal only an intention to close a loophole 
that might prevent felony prosecutions for commercial trafficking in 
migratory birds and their parts.
    Thus, there appears to be no explicit basis in the language or 
the development of the MBTA for concluding that it was intended to 
be applied to any and all human activity that causes even 
unintentional deaths of migratory birds.

927 F. Supp. at 1581 (referencing S. Rep. No. 99-445, at 16 (1986), 
reprinted in 1986 U.S.C.C.A.N. 6113, 6128). Thus, limiting the range of 
actions prohibited by the MBTA to those that are directed at migratory 
birds will focus prosecutions on activities like hunting and trapping 
and exclude more attenuated conduct, such as lawful commercial 
activity, that unintentionally and indirectly results in the death of 
migratory birds.

The History of the MBTA

    The history of the MBTA and the debate surrounding its adoption 
illustrate that the Act was part of Congress's efforts to regulate the 
hunting of migratory birds in direct response to the extreme over-
hunting, largely for commercial purposes, that had occurred over the 
years. See United States v. Moon Lake Electric Ass'n, 45 F. Supp. 2d 
1070, 1080 (D. Colo. 1999) (``the MBTA's legislative history indicates 
that Congress intended to regulate recreational and commercial 
hunting''); Mahler, 927 F. Supp. at 1574 (``The MBTA was designed to 
forestall hunting of migratory birds and the sale of their parts''). 
Testimony concerning the MBTA given by the Solicitor's Office for the 
Department of Agriculture underscores this focus:

    We people down here hunt [migratory birds]. The Canadians 
reasonably want some assurances from the United States that if they 
let those birds rear their young up there and come down here, we 
will preserve a sufficient supply to permit them to go back there.

Protection of Migratory Birds: Hearing on H.R. 20080 Before the House 
Comm. on Foreign Affairs, 64th Cong. 22-23 (1917) (statement of R.W. 
Williams, Solicitor's Office, Department of Agriculture). Likewise, the 
Chief of the Department of Agriculture's Bureau of Biological Survey 
noted that he ``ha[s] always had the idea that [passenger pigeons] were 
destroyed by overhunting, being killed for food and for sport.'' 
Protection of Migratory Birds: Hearing on H.R. 20080 Before the House 
Comm. on Foreign Affairs, 64th Cong. 11 (1917) (statement of E. W. 
Nelson, Chief Bureau of Biological Survey, Department of Agriculture).
    Statements from individual Congressmen evince a similar focus on 
hunting. Senator Smith, ``who introduced and championed the Act . . . 
in the Senate,'' Leaders in Recent Successful Fight for the Migratory 
Bird Treaty Act, Bulletin--The American Game Protective Association, 
July 1918, at 5, explained:

    Nobody is trying to do anything here except to keep pothunters 
from killing game out of season, ruining the eggs of nesting birds, 
and ruining the country by it. Enough birds will keep every insect 
off of every tree in America, and if you will quit shooting them, 
they will do it.

55 Cong. Rec. 4816 (statement of Sen. Smith) (1917). Likewise, during 
hearings of the House Foreign Affairs Committee, Congressman Miller, a 
``vigorous fighter, who distinguished himself in the debate'' over the 
MBTA, Leaders in Recent Successful Fight for the Migratory Bird Treaty 
Act, Bulletin--The American Game Protective Association, July 1918, at 
5, put the MBTA squarely in the context of hunting:

    I want to assure you . . . that I am heartily in sympathy with 
this legislation. I want it to go through, because I am up there 
every fall, and I know what the trouble is. The trouble is in 
shooting the ducks in Louisiana, Arkansas, and Texas in the summer 
time, and also killing them when they are nesting up in Canada.

Protection of Migratory Birds: Hearing on H.R. 20080 Before the House 
Comm. on Foreign Affairs, 64th Cong. 7 (1917) (statement of Rep. 
Miller).
    In seeking to take a broader view of congressional purpose, the 
Moon Lake court looked to other contemporary statements that cited the 
destruction of habitat, along with improvements in firearms, as a cause 
of the decline in migratory bird populations. The court even suggested 
that these statements, which ``anticipated application of the

[[Page 1138]]

MBTA to children who act `through inadvertence' or `through accident,' 
'' supported a broader reading of the legislative history. Moon Lake, 
45 F. Supp. 2d at 1080-81. Upon closer examination, these statements 
are instead consistent with a limited reading of the MBTA.
    One such contemporary statement cited by the court is a letter from 
Secretary of State Robert Lansing to the President attributing the 
decrease in migratory bird populations to two general issues:
     Habitat destruction, described generally as ``the 
extension of agriculture, and particularly the draining on a large 
scale of swamps and meadows;'' and
     Hunting, described in terms of ``improved firearms and a 
vast increase in the number of sportsmen.''
    Representative Baker referenced these statements during the House 
floor debate over the MBTA, implying that the MBTA was intended to 
address both issues. Moon Lake, 45 F. Supp. 2d at 1080-81 (quoting H. 
Rep. No. 65-243, at 2 (1918) (letter from Secretary of State Robert 
Lansing to the President)). However, Congress addressed hunting and 
habitat destruction in the context of the Migratory Bird Treaty through 
two separate acts:
     First, in 1918, Congress adopted the MBTA to address the 
direct and intentional killing of migratory birds;
     Second, in 1929, Congress adopted the Migratory Bird 
Conservation Act to ``more effectively'' implement the Migratory Bird 
Treaty by protecting certain migratory bird habitats.
    The Migratory Bird Conservation Act provided the authority to 
purchase or rent land for the conservation of migratory birds, 
including for the establishment of inviolate ``sanctuaries'' wherein 
migratory bird habitats would be protected from persons ``cut[ting], 
burn[ing], or destroy[ing] any timber, grass, or other natural 
growth.'' Migratory Bird Conservation Act, Sec. 10, 45 Stat. 1222, 1224 
(1929) (codified as amended at 16 U.S.C. 715-715s). If the MBTA was 
originally understood to protect migratory bird habitats from 
incidental destruction, enactment of the Migratory Bird Conservation 
Act 11 years later would have been largely superfluous. Instead, the 
MBTA and the Migratory Bird Conservation Act are complementary: 
``Together, the Treaty Act in regulating hunting and possession and the 
Conservation Act by establishing sanctuaries and preserving natural 
waterfowl habitat help implement our national commitment to the 
protection of migratory birds.'' United States v. North Dakota, 650 
F.2d 911, 913-14 (8th Cir. 1981), aff'd on other grounds, 460 U.S. 300 
(1983).
    Some courts have attempted to interpret a number of floor 
statements as supporting the notion that Congress intended the MBTA to 
regulate more than just hunting and poaching, but those statements 
reflect an intention to prohibit actions directed at birds--whether 
accomplished through hunting or some other means intended to kill birds 
directly. For example, some Members ``anticipated application of the 
MBTA to children who act `through inadvertence' or `through accident.' 
''

    What are you going to do in a case like this: A barefoot boy, as 
barefoot boys sometimes do, largely through inadvertence and without 
meaning anything wrong, happens to throw a stone at and strikes and 
injures a robin's nest and breaks one of the eggs, whereupon he is 
hauled before a court for violation of a solemn treaty entered into 
between the United States of America and the Provinces of Canada.

Moon Lake, 45 F. Supp. 2d at 1081 (quoting 56 Cong. Rec. 7455 (1918) 
(statement of Rep. Mondell)). ``[I]nadvertence'' in this statement 
refers to the boy's mens rea. As the rest of the sentence clarifies, 
the hypothetical boy acted ``without meaning anything wrong,'' not that 
he acted unintentionally or accidentally in damaging the robin's nest. 
This is reinforced by the rest of the hypothetical, which posits that 
the boy threw ``a stone at and strikes and injures a robin's nest.'' 
The underlying act is directed specifically at the robin's nest. In 
other statements, various members of Congress expressed concern about 
``sportsmen,'' people ``killing'' birds, ``shooting'' of game birds or 
``destruction'' of insectivorous birds, and whether the purpose of the 
MBTA was to favor a steady supply of ``game animals for the upper 
classes.'' Moon Lake, 45 F. Supp. 2d at 1080-81. One Member of Congress 
even offered a statement that explains why the statute is not redundant 
in its use of the various terms to explain what activities are 
regulated: ``[T]hey cannot hunt ducks in Indiana in the fall, because 
they cannot kill them. I have never been able to see why you cannot 
hunt, whether you kill or not. There is no embargo on hunting, at least 
down in South Carolina. . . .' '' Id. at 1081 (quoting 56 Cong. Rec. 
7446 (1918) (statement of Rep. Stevenson)). That Congress was animated 
regarding potential restrictions on hunting and its impact on 
individual hunters is evident from even the statements relied upon as 
support for the conclusion that the statute reaches incidental take.
    Finally, in 1918, Federal regulation of the hunting of wild birds 
was a highly controversial and legally fraught subject. For example, on 
the floor of the Senate, Senator Reed proclaimed:

    I am opposed not only now in reference to this bill [the MBTA], 
but I am opposed as a general proposition to conferring power of 
that kind upon an agent of the Government. . . .
    . . . Section 3 proposes to turn these powers over to the 
Secretary of Agriculture. . . to make it a crime for a man to shoot 
game on his own farm or to make it perfectly legal to shoot it on 
his own farm. . . .
    When a Secretary of Agriculture does a thing of that kind I have 
no hesitancy in saying that he is doing a thing that is utterly 
indefensible, and that the Secretary of Agriculture who does it 
ought to be driven from office. . . .

55 Cong. Rec. 4813 (1917) (statement of Sen. Reed).
    Federal regulation of hunting was also legally tenuous at that 
time. Whether the Federal Government had any authority to regulate the 
killing or taking of any wild animal was an open question in 1918. Just 
over 20 years earlier, the Supreme Court in Geer had ruled that the 
States exercised the power of ownership over wild game in trust, 
implicitly precluding Federal regulation. See Geer v. Connecticut, 161 
U.S. 519 (1896). When Congress did attempt to assert a degree of 
Federal jurisdiction over wild game with the 1913 Weeks-McLean Law, it 
was met with mixed results in the courts, leaving the question pending 
before the Supreme Court at the time of the MBTA's enactment. See, 
e.g., United States v. Shaver, 214 F. 154, 160 (E.D. Ark. 1914); United 
States v. McCullagh, 221 F. 288 (D. Kan. 1915). It was not until 
Missouri v. Holland in 1920 that the Court, relying on authority 
derived from the Migratory Bird Treaty (Canada Convention) under the 
Treaty Clause of the U.S. Constitution, definitively acknowledged the 
Federal Government's ability to regulate the taking of wild birds. 252 
U.S. 416, 432-33 (1920).
    Given the legal uncertainty and political controversy surrounding 
Federal regulation of intentional hunting in 1918, it is highly 
unlikely that Congress intended to confer authority upon the executive 
branch to prohibit all manner of activity that had an incidental impact 
on migratory birds.
    The provisions of the 1916 Canada Convention authorize only certain 
circumscribed activities specifically directed at migratory birds. 
Articles II through IV of the Convention create closed periods during 
which hunting of migratory species covered by the Convention may be 
authorized only for limited purposes, such as scientific use

[[Page 1139]]

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

[[Page 1140]]

address a discrete problem, the most that can be said is that Congress 
did no more than the plain text of the amendment means.'' Id. It did 
not hide the elephant of incidental takings in the mouse hole of a 
narrow appropriations provision.

Constitutional Issues

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

[[Page 1141]]

third most common human-caused threat to birds, killing an estimated 
599 million and 214.5 million birds per year, respectively. It is 
eminently foreseeable and probable that cars and windows will kill 
birds. Thus, limiting incidental take to direct and foreseeable results 
does little to prevent absurd outcomes.
    To avoid these absurd results, the government has historically 
relied on prosecutorial discretion. See Ogden at 29 (``Historically, 
the limiting mechanism on the prosecution of incidental taking under 
the MBTA by non-federal persons has been the exercise of prosecutorial 
discretion by the FWS.''); see generally FMC, 572 F.2d at 905 
(situations ``such as deaths caused by automobiles, airplanes, plate 
glass modern office buildings or picture windows in residential 
dwellings . . . properly can be left to the sound discretion of 
prosecutors and the courts''). Yet, the Supreme Court has declared 
``[i]t will not do to say that a prosecutor's sense of fairness and the 
Constitution would prevent a successful . . . prosecution for some of 
the activities seemingly embraced within the sweeping statutory 
definitions.'' Baggett v. Bullitt, 377 U.S. 360, 373 (1964); see also 
Mahler, 927 F. Supp. 1582 (``Such trust in prosecutorial discretion is 
not really an answer to the issue of statutory construction'' in 
interpreting the MBTA.). For broad statutes that may be applied to 
seemingly minor or absurd situations, ``[i]t is no answer to say that 
the statute would not be applied in such a case.'' Keyishian v. Bd. of 
Regents, 385 U.S. 589, 599 (1967).
    Recognizing the challenge posed by relying upon prosecutorial 
discretion, the FMC court sought to avoid absurd results by limiting 
its holding to ``extrahazardous activities.'' FMC, 572 F.2d at 907. The 
term ``extrahazardous activities'' is not found anywhere in the statute 
and is not defined by either the court or the Service. See Mahler, 927 
F. Supp. at 1583 n.9 (noting that the FMC court's ``limiting principle 
. . . of strict liability for hazardous commercial activity . . . ha[s] 
no apparent basis in the statute itself or in the prior history of the 
MBTA's application since its enactment''); cf. United States v. 
Rollins, 706 F. Supp. 742, 744-45 (D. Idaho 1989) (``The statute itself 
does not state that poisoning of migratory birds by pesticide 
constitutes a criminal violation. Such specificity would not have been 
difficult to draft into the statute''). Thus, it is unclear what 
activities are ``extrahazardous.'' In FMC, the concept was applied to 
the manufacture of ``toxic chemicals,'' i.e., pesticides. But the court 
was silent as to how far this rule extends, even in the relatively 
narrow context of pesticides.
    This type of uncertainty is problematic under the Supreme Court's 
due process jurisprudence. See Rollins, 706 F. Supp. at 745 (dismissing 
charges against a farmer who applied pesticides to his fields that 
killed a flock of geese, reasoning ``[f]armers have a right to know 
what conduct of theirs is criminal, especially where that conduct 
consists of common farming practices carried on for many years in the 
community. While statutes do not have to be drafted with `mathematical 
certainty,' they must be drafted with a `reasonable degree of 
certainty.' The MBTA fails this test. . . . Under the facts of this 
case, the MBTA does not give `fair notice as to what constitutes 
illegal conduct' so that [the farmer] could `conform his conduct to the 
requirements of the law.' '' (internal citations omitted)).
    While the MBTA does contemplate the issuance of permits authorizing 
the taking of wildlife, it requires such permits to be issued by 
``regulation.'' See 16 U.S.C. 703(a) (``Unless and except as permitted 
by regulations made as hereinafter provided . . . .'' (emphasis 
added)). No regulations have been issued to create a permit scheme to 
authorize incidental take, so most potential violators have no formal 
mechanism to ensure that their actions comply with the law. There are 
voluntary Service guidelines issued for different industries that 
recommend best practices to avoid incidental take of protected birds; 
however, these guidelines provide only limited protection to potential 
violators and do not constitute a regulatory authorization or result in 
the issuance of permits.
    In the absence of a permit issued pursuant to Departmental 
regulation, it is not clear that the Service has any authority under 
the MBTA to require minimizing or mitigating actions that balance the 
environmental harm from the taking of migratory birds with other 
societal goals, such as the production of wind or solar energy. 
Accordingly, the guidelines do not provide enforceable legal 
protections for people and businesses who abide by their terms. To wit, 
the guidelines themselves state, ``it is not possible to absolve 
individuals or companies'' from liability under the MBTA. Rather, the 
guidelines are explicit that the Service may only consider full 
compliance in exercising its discretion whether to refer an individual 
or company to the Department of Justice for prosecution. See, e.g., 
U.S. Fish and Wildlife Service, Land-Based Wind Energy Guidelines 6 
(Mar. 23, 2012).
    Under this approach, it is literally impossible for individuals and 
companies to know exactly what is required of them under the law when 
otherwise-lawful activities necessarily result in accidental bird 
deaths. Even if they comply with everything requested of them by the 
Service, they may still be prosecuted, and still found guilty of 
criminal conduct. See generally United States v. FMC Corp., 572 F.2d 
902, 904 (2d Cir. 1978) (the court instructed the jury not to consider 
the company's remediation efforts as a defense: ``Therefore, under the 
law, good will and good intention and measures taken to prevent the 
killing of the birds are not a defense.''). In sum, due process 
``requires legislatures to set reasonably clear guidelines for law 
enforcement officials and triers of fact in order to prevent `arbitrary 
and discriminatory enforcement.' '' Smith v. Goguen, 415 U.S. 566, 572-
73 (1974).
    Reading the MBTA to capture incidental takings could potentially 
transform average Americans into criminals. The text, history, and 
purpose of the MBTA demonstrate instead that it is a law limited in 
relevant part to actions, such as hunting and poaching, that reduce 
migratory birds and their nests and eggs to human control by killing or 
capturing. Even assuming that the text could be subject to multiple 
interpretations, courts and agencies are to avoid interpreting 
ambiguous laws in ways that raise constitutional doubts if alternative 
interpretations are available. Interpreting the MBTA to criminalize 
incidental takings raises potential due process concerns. Based upon 
the text, history, and purpose of the MBTA, and consistent with 
decisions in the Courts of Appeals for the Fifth, Eighth, and Ninth 
circuits, there is an alternative interpretation that avoids these 
concerns. Therefore, the Service concludes that the scope of the MBTA 
does not include incidental take.

Policy Analysis of Incidental Take Under the MBTA

    As detailed above, the Service has determined 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 is compelled as a matter of law. In 
addition, even if such a conclusion is not legally compelled, the 
Service proposes to adopt it as a matter of policy.
    The Service's approach to incidental take prior to 2017 was 
implemented without public input and has resulted in regulatory 
uncertainty and

[[Page 1142]]

inconsistency. Prosecutions for incidental take occurred in the 1970s 
without any accompanying change in either the underlying statute or 
Service regulations. Accordingly, an interpretation with broad 
implications for the American public was implicitly adopted without 
public debate. Subsequently, the Service has sought to limit the 
potential reach of MBTA liability by pursuing enforcement proceedings 
only against persons who fail to take what the Service considers 
``reasonable'' precautions against foreseeable risks.
    Based upon the Service's analysis of manmade threats to migratory 
birds and the Service's own enforcement history, common activities such 
as owning and operating a power line, wind farm, or drilling operation 
pose an inherent risk of incidental take. An expansive reading of the 
MBTA that includes an incidental-take prohibition would subject those 
who engage in these common, and necessary, activities to criminal 
liability.
    This approach effectively leaves otherwise lawful and often 
necessary businesses to take their chances and hope they avoid 
prosecution, not because their conduct is or even can be in strict 
compliance with the law, but because the government has chosen to forgo 
prosecution. Otherwise-lawful economic activity should not be 
functionally dependent upon the ad hoc exercise of enforcement 
discretion.
    Further, as a practical matter, inconsistency and uncertainty are 
built into the MBTA enforcement regime by virtue of a split between 
Federal Circuit Courts of Appeals. Courts have adopted different views 
on whether section 2 of the MBTA prohibits incidental take, and, if so, 
to what extent. Courts of Appeals in the Second and Tenth Circuits, as 
well as district courts in at least the Ninth and District of Columbia 
Circuits, have held that the MBTA criminalizes some instances of 
incidental take, generally with some form of limiting construction. See 
United States v. FMC Corporation, 572 F.2d 902 (2d Cir. 1978); United 
States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010); United 
States v. Corbin Farm Serv., 444 F. Supp. 510 (E.D. Cal. 1978); Ctr. 
for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002), 
vacated on other grounds sub nom. Ctr. for Biological Diversity v. 
England, 2003 App. LEXIS 1110 (D.C. Cir. 2003). By contrast, Courts of 
Appeals in the Fifth, Eighth, and Ninth Circuits, as well as district 
courts in the Third and Seventh Circuits, have indicated that it does 
not. See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 
2015); Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110 
(8th Cir. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 
1991); Mahler v. U.S. Forest Serv., 927 F. Supp. 1559 (S.D. Ind. 1996); 
Curry v. U.S. Forest Serv., 988 F. Supp. 541, 549 (W.D. Pa. 1997).
    As a result of these cases, the Federal Government is clearly 
prohibited from enforcing an incidental take prohibition in the Fifth 
Circuit. In the Eighth Circuit, the Federal Government has previously 
sought to distinguish court of appeals rulings limiting the scope of 
the MBTA to the habitat-destruction context. See generally Apollo 
Energies, 611 F.3d at 686 (distinguishing the Eighth Circuit decision 
in Newton County on the grounds that it involved logging that modified 
a bird's habitat in some way). However, that argument was rejected by a 
subsequent district court. See United States v. Brigham Oil & Gas, 
L.P., 840 F. Supp. 2d 1202 (D.N.D. 2012). Likewise, the Federal 
Government has sought to distinguish holdings in the habitat-
destruction context in the Ninth Circuit. See United States v. Moon 
Lake Electrical Ass'n, 45 F. Supp. 2d 1070, 1075-76 (D. Colo. 1999) 
(suggesting that the Ninth Circuit's ruling in Seattle Audubon may be 
limited to habitat modification or destruction). In the Second and 
Tenth Circuits, the Federal Government can apply the MBTA to incidental 
take, albeit with differing judicial limitations.
    These cases demonstrate the potential for a convoluted patchwork of 
legal standards; all purporting to apply the same underlying law. The 
MBTA is a national law. Many of the companies and projects that face 
potential liability under the MBTA operate across boundary lines for 
judicial circuits. Yet what is legal in the Fifth and Eighth Circuits 
may become illegal as soon as an operator crosses State lines into the 
bordering Tenth Circuit or become a matter of uncertainty in the Ninth 
Circuit. The Service concludes that it is in its own interest, as well 
as that of the public, to have and apply a national standard that sets 
a clear, articulable rule for when an operator crosses the line into 
criminality. The most effective way to reduce uncertainty and have a 
truly national standard is for the Service to codify and apply a 
uniform interpretation of the MBTA that its prohibitions do not apply 
to incidental take, based upon the Fifth Circuit's ruling in CITGO 
Petroleum Corporation.
    Therefore, as a matter of both law and policy, the Service adopts a 
regulation limiting the scope of the MBTA to actions that are directed 
at migratory birds, their nests, or their eggs, and clarifying that 
injury to or mortality of migratory birds that results from, but is not 
the purpose of, an action (i.e., incidental taking or killing) is not 
prohibited by the Migratory Bird Treaty Act.

Public Comments

    On February 3, 2020, the Service published in the Federal Register 
(85 FR 5915) a proposed rule to define the scope of the MBTA as it 
applies to conduct resulting in the injury or death of migratory birds 
protected by the Act. We solicited public comments on the proposed rule 
for 45 days, ending on March 19, 2020. We received 8,398 comments. Many 
comments included additional attachments (e.g., scanned letters, 
photographs, and supporting documents). These comments represented the 
views of multiple State and local government agencies, private 
industries, non-governmental organizations (NGOs), and private 
citizens. In addition to the individual comments received, 10 
organizations submitted attachments representing individuals' comments, 
form letters, and signatories to petition-like letters representing 
almost 180,000 signers. The following text presents the substantive 
comments we received and responses to them.
    Comment: Multiple commenters noted that Congress has amended the 
MBTA in multiple instances (i.e., narrowing scope of strict liability, 
adding knowledge requirement to felony violation, narrowly exempting 
certain activities from incidental take, etc.). The commenters noted 
that Congress could have clarified any objection to the enforcement of 
incidental take but did not. The commenters suggested that these later 
congressional interpretations should be given great weight and that 
failure to include incidental take within the scope of the statute 
would virtually nullify these amendments. Congress specifically 
demonstrated its familiarity with the development of take liability in 
1998 when it tackled the ``unfairness'' of strict liability in baiting 
cases. Rather than strict liability, the MBTA would apply a negligence 
standard to hunters who used fields with loose grain. In making this 
change, the Senate Report noted that the amendment was ``not intended 
in any way to reflect upon the general application of strict liability 
under the MBTA.''
    Response: The operative language originally enacted in section 2 of 
the MBTA has not substantively changed since 1936. The 1936 amendment 
modified the language to clarify its meaning and application, but there 
is no indication those changes were intended

[[Page 1143]]

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

[[Page 1144]]

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

[[Page 1145]]

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

[[Page 1146]]

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

[[Page 1147]]

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

[[Page 1148]]

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

[[Page 1149]]

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

[[Page 1150]]

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

[[Page 1151]]

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

[[Page 1152]]

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

[[Page 1153]]

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

[[Page 1154]]

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

[[Page 1155]]

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

[[Page 1156]]

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

[[Page 1157]]

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

[[Page 1158]]

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

[[Page 1159]]

would fulfill the Treaty obligations while also satisfying the intent 
of E.O.s 12866 and 13563. The commenter called for the Office of 
Information and Regulatory Affairs to review the justification for 
consistency with these Executive Orders.
    Response: The regulatory impact analysis developed for the proposed 
rule documents compliance with Executive Orders 12866 and 13563 and was 
reviewed and approved by OMB's Office of Information and Regulatory 
Affairs. We acknowledge that incidental take of migratory birds has a 
negative impact on many migratory bird populations and have assessed 
any incremental impact caused by this rulemaking and its reasonable 
alternatives in the EIS. We disagree that this rulemaking will have a 
substantial impact on migratory bird populations when compared to prior 
agency practice.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.
    Codifying our interpretation that the MBTA does not prohibit 
incidental take into Federal regulations would provide the public, 
businesses, government agencies, and other entities legal clarity and 
certainty regarding what is and is not prohibited under the MBTA. It is 
anticipated that some entities that currently employ mitigation 
measures to reduce or eliminate incidental migratory bird take would 
reduce or curtail these activities given the legal certainty provided 
by this regulation. Others may continue to employ these measures 
voluntarily for various reasons or to comply with other Federal, State, 
and local laws and regulations. The Service has conducted a cost-
benefit analysis which can be viewed online at https://beta.regulations.gov/docket/FWS-HQ-MB-2018-0090/document and https://www.fws.gov/regulations/mbta/.

Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small businesses, 
small organizations, and small government jurisdictions. However, in 
lieu of an initial or final regulatory flexibility analysis (IRFA or 
FRFA) the head of an agency may certify on a factual basis that the 
rule would not have a significant economic impact on a substantial 
number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule would not have a significant economic impact on a 
substantial number of small entities. Thus, for an initial/final 
regulatory flexibility analysis to be required, impacts must exceed a 
threshold for ``significant impact'' and a threshold for a 
``substantial number of small entities.'' See 5 U.S.C. 605(b). This 
analysis first estimates the number of businesses impacted and then 
estimates the economic impact of the rule.
    Table 1 lists the industry sectors likely impacted by the rule. 
These are the industries that typically incidentally take substantial 
numbers of birds and that the Service has worked with to reduce those 
effects. In some cases, these industries have been subject to 
enforcement actions and prosecutions under the MBTA prior to the 
issuance of M-37050. The vast majority of entities in these sectors are 
small entities, based on the U.S. Small Business Administration (SBA) 
small business size standards. Not all small businesses will be 
impacted by this rule. Only those businesses choosing to reduce best 
management practices will accrue benefits.

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

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

[[Page 1160]]

measures to reduce incidental take of birds. Not all businesses in each 
sector incidentally take birds. In addition, a variety of factors would 
influence whether, under the previous interpretation of the MBTA, 
businesses would implement such measures. It is also unknown how many 
businesses continued or reduced practices to reduce the incidental take 
of birds since publication of the Solicitor's M-Opinion. We did not 
receive any information on that issue during the public comment period 
for this rule.
    This rule is deregulatory in nature and is thus likely to have a 
positive economic impact on all regulated entities, and many of these 
entities likely qualify as small businesses under the Small Business 
Administration's threshold standards (see Table 1). By codifying the 
Service's interpretation, first outlined in Solicitor's Opinion, M-
37050, this rulemaking would remove legal uncertainty for any 
individual, government entity, or business entity that undertakes any 
activity that may kill or take migratory birds incidental to otherwise 
lawful activity. Such small entities would benefit from this rule 
because it would remove uncertainty about the potential impacts of 
proposed projects. Therefore, these entities will have better 
information for planning projects and achieving goals.
    However, the economic impact of the rule on small entities is 
likely not significant. As shown in Table 6, the costs of actions 
businesses typically implement to reduce effects on birds are small 
compared to the economic output of business, including small 
businesses, in these sectors. In addition, many businesses will 
continue to take actions to reduce effects on birds because these 
actions are best management practices for their industry or are 
required by other Federal or State regulations, there is a public 
desire to continue them, or the businesses simply desire to reduce 
their effects on migratory birds. For example, 13 States have oil pit 
covering requirements.
    This analysis examines the potential effect of the rule on small 
businesses in selected industries. Following this discussion is a 
summary of mitigation measures and costs (Table 6) and a summary of the 
economic effects of the rule on the business sectors identified in 
Table 1 (Table 7).

Finfish (NAICS 114111)

    Although longline fishing is regulated under the Magnuson-Stevens 
Act, seabirds are not afforded protection as they do not fall under 
that statute's definition of bycatch. See 16 U.S.C. 1802. Therefore, it 
is probable these finfish businesses may reduce bird mitigation 
measures such as changes in design of longline fishing hooks, change in 
offal management practices, and flagging or streamers on fishing lines. 
Table 6 shows example costs of some of the mitigation measures.
    Data are unavailable regarding fleet size and how many measures are 
employed on each vessel. Because data are unavailable about the 
distribution of possible range of measures and costs, we do not 
extrapolate cost data to small businesses. Table 2 shows the 
distribution of businesses by employment size and average annual 
payroll.

     Table 2--Finfish NAICS 14111: Employment Sizes and Payroll \1\
------------------------------------------------------------------------
                                                              Average
                                             Number of    annual payroll
             Employment size                businesses      per business
                                                                \2\
------------------------------------------------------------------------
Less than 5 employees...................           1,134         $62,000
5 to 9 employees........................              45         372,000
10 to 19 employees......................              23         639,000
20 to 49 employees......................              20       2,837,000
50 to 99 employees......................               5       4,333,000
100 to 249 employees....................               4      13,941,000
------------------------------------------------------------------------
\1\ 2017 Economic Census.
\2\ Sales data are not available by employment size.

Crude Petroleum and Natural Gas Extraction (NAICS 211111)

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

         Table 3--Crude Petroleum and Natural Gas Extraction NAICS 21111: Employment Sizes and Sales \1\
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                                                                     Number of       impacted     Average  sales
                         Employment size                            businesses      businesses     per  business
                                                                                    (37 states)
----------------------------------------------------------------------------------------------------------------
Less than 5 employees...........................................           3,957             966      $1,473,000

[[Page 1161]]

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

Drilling Oil and Gas Wells (NAICS 213111)

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

                Table 4--Drilling Oil and Gas Wells NAICS 213111: Employment Sizes and Sales \1\
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                                                                     Number of       impacted      Average sales
                         Employment size                            businesses      businesses     per business
                                                                                    (37 states)
----------------------------------------------------------------------------------------------------------------
Less than 5 employees...........................................           1,217             393        $312,000
5 to 9 employees................................................             289              93       1,674,000
10 to 19 employees..............................................             299              97       3,300,000
20 to 49 employees..............................................             330             107      11,791,000
50 to 99 employees..............................................             150              48      17,454,000
100 to 249 employees............................................              85              27      38,874,000
250 employees or more...........................................              52              17     140,769,000
----------------------------------------------------------------------------------------------------------------
\1\ Economic Census 2017.

Solar Electric Power Generation (NAICS 221114)

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

 Table 5--Solar Electric Power Generation NAICS 221114: Employment Sizes
                              and Sales \1\
------------------------------------------------------------------------
                                             Number of    Average  sales
             Employment size                businesses     per  business
------------------------------------------------------------------------
Less than 5 employees...................              91      $6,792,000
5 to 9 employees........................              28       4,518,000
10 to 19 employees......................              21       5,806,000
20 to 49 employees......................              14      19,754,000
50 to 99 employees......................               6      64,296,000

[[Page 1162]]

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

Other Industries (NAICS 221115, 221121, 221122, and 517312)

    For the selected industries, we do not provide further analysis 
because minimal effects are expected on small businesses relative to an 
environmental baseline based on current regulations and voluntary 
conservation measures, due to the fact that mitigation costs are small 
relative to the cost of projects (see Table 7). Because there is not 
now, nor has there previously been a large-scale permit program for 
incidental take, the baseline does not include the potential costs of 
complying with such a program, including the regulatory uncertainty 
associated with permit approval, compliance with other statutes (e.g., 
the National Environmental Policy Act), and potential litigation.

Summary

    Table 6 identifies examples of bird mitigation measures and their 
associated cost. Table 7 summarizes likely economic effects of the rule 
on the business sectors identified in Table 1.

                            Table 6--Best Management Practices Costs by Industry \1\
----------------------------------------------------------------------------------------------------------------
                                                                                            Why data are not
                                    Example of bird mitigation                           extrapolated to entire
          NAICS industry                      measure               Estimated cost         industry or small
                                                                                               businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing (NAICS 11411).....  Changes in design of         Costs are      No data
                                     longline fishing hooks,     per vessel per year.   available on fleet size.
                                     change in offal             $1,400 for     No data
                                     management practices,       thawed blue-dyed       available on how many
                                     flagging or streamers on    bait.                  measures are employed on
                                     fishing lines.              $150 for       each vessel.
                                                                 strategic offal
                                                                 discards.
                                                                 $4,600 for
                                                                 Tori line.
                                                                 $4,000 one-
                                                                 time cost for
                                                                 underwater setting
                                                                 chute.
                                                                 $4,000
                                                                 initial and $50
                                                                 annual for side
                                                                 setting.
Crude Petroleum and Natural Gas      Netting of oil      $130,680 to    Infeasible to
 Extraction NAICS (211111).          pits and ponds.             $174,240 per acre to   net pits larger than 1
                                     Closed wastewater   net ponds.             acre due to sagging.
                                     systems.                    Most netted    Size
                                                                 pits are \1/4\ to \1/  distribution of oil pits
                                                                 2\ acre.               is unknown.
                                                                 Cost not       Average number
                                                                 available for          of pits per business is
                                                                 wastewater systems.    unknown.
                                                                                        Closed
                                                                                        wastewater systems
                                                                                        typically used for
                                                                                        reasons other than bird
                                                                                        mitigation.
Drilling Oil and Gas Wells (NAICS    Netting of oil      $130,680 to    Infeasible to
 213111).                            pits and ponds.             $174,240 per acre to   net pits larger than 1
                                     Closed loop         net ponds.             acre due to sagging.
                                     drilling fluid systems.     Cost not       Size
                                                                 available for closed   distribution of oil pits
                                                                 loop drilling fluid    is unknown.
                                                                 systems, but may be    Average number
                                                                 a net cost savings     of pits per business is
                                                                 in arid areas with     unknown.
                                                                 water conservation     Closed loop
                                                                 requirements.          drilling fluid systems
                                                                                        typically used for
                                                                                        reasons other than bird
                                                                                        mitigation.
                                                                                        High variability
                                                                                        in number of wells
                                                                                        drilled per year (21,200
                                                                                        in 2019).
Solar Electric Power Generation     Pre- and post-construction  No public comments     New projects can vary
 (NAICS 221114).                     bird surveys.               received to estimate   from 100 to 5,000 acres
                                                                 costs.                 in size, and mortality
                                                                                        surveys may not scale
                                                                                        linearly.
Wind Electric Power Generation       Pre-construction    Cost not       Data not
 (NAICS 221115).                     adjustment of turbine       available for          available for adjustment
                                     locations to minimize       adjustment of          of turbine construction
                                     bird mortality during       turbine construction   locations.
                                     operations.                 locations.             High variability
                                     Pre- and post-      $100,000 to    in survey costs and high
                                     construction bird surveys.  $500,000 per           variability in need to
                                     Retrofit power      facility per year      conduct surveys.
                                     poles to minimize eagle     for pre-construction   High variability
                                     mortality.                  site use and post-     in cost and need to
                                                                 construction bird      retrofit power poles.
                                                                 mortality surveys.
                                                                 $7,500 per
                                                                 power pole with high
                                                                 variability of cost.
                                                                 Annual
                                                                 nationwide labor
                                                                 cost to implement
                                                                 wind energy
                                                                 guidelines: $17.6M.
                                                                 Annual
                                                                 nationwide non-labor
                                                                 cost to implement
                                                                 wind energy
                                                                 guidelines: $36.9M.

[[Page 1163]]

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


                            Table 7--Summary of Economic Effects on Small Businesses
----------------------------------------------------------------------------------------------------------------
                                           Bird mitigation
 NAICS industry description    NAICS code   measures with     Economic effects on  small          Rationale
                                              no action               businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing.............        11411  Changes in       Likely minimal effects........  Seabirds are
                                            design of                                        specifically
                                            longline                                         excluded from the
                                            fishing hooks,                                   definition of
                                            change in                                        bycatch under the
                                            offal                                            Magnuson-Stevens
                                            management                                       Fishery
                                            practices, and                                   Conservation and
                                            flagging/                                        Management Act, and
                                            streamers on                                     therefore seabirds
                                            fishing lines.                                   not listed under
                                                                                             the Endangered
                                                                                             Species Act may not
                                                                                             be covered by any
                                                                                             mitigation
                                                                                             measures. The
                                                                                             impact of this on
                                                                                             small entities is
                                                                                             unknown.
Crude Petroleum and Natural        211111  Using closed     Likely minimal effects........  Thirteen States have
 Gas Extraction.                            waste-water                                      regulations
                                            systems or                                       governing the
                                            netting of oil                                   treatment of oil
                                            pits and ponds.                                  pits such as
                                                                                             netting or
                                                                                             screening of
                                                                                             reserve pits,
                                                                                             including measures
                                                                                             beneficial to
                                                                                             birds. In addition,
                                                                                             much of the
                                                                                             industry is
                                                                                             increasingly using
                                                                                             closed systems,
                                                                                             which do not pose a
                                                                                             risk to birds. For
                                                                                             these reasons, this
                                                                                             rule is unlikely to
                                                                                             affect a
                                                                                             significant number
                                                                                             of small entities.
Drilling Oil and Gas Wells..       213111  Using closed     Likely minimal effects........  Thirteen States have
                                            waste-water                                      regulations
                                            systems or                                       governing the
                                            netting of oil                                   treatment of oil
                                            pits and ponds.                                  pits, such as
                                                                                             netting or
                                                                                             screening of
                                                                                             reserve pits,
                                                                                             including measures
                                                                                             beneficial to
                                                                                             birds. In addition,
                                                                                             much of the
                                                                                             industry is
                                                                                             increasingly using
                                                                                             closed systems,
                                                                                             which do not pose a
                                                                                             risk to birds. For
                                                                                             these reasons, this
                                                                                             rule is unlikely to
                                                                                             affect a
                                                                                             significant number
                                                                                             of small entities.
Solar Electric Power               221114  Monitoring bird  Likely minimal effects........  Bird monitoring in
 Generation.                                use and                                          some States may
                                            mortality at                                     continue to be
                                            facilities,                                      required under
                                            limited use of                                   State policies. The
                                            deterrent                                        number of States
                                            systems such                                     and the policy
                                            as streamers                                     details are
                                            and reflectors.                                  unknown.
Wind Electric Power                221115  Following Wind   Likely minimal effects........  Following the Wind
 Generation.                                Energy                                           Energy Guidelines
                                            Guidelines,                                      has become industry
                                            which involve                                    best practice and
                                            conducting                                       would likely
                                            risk                                             continue. In
                                            assessments                                      addition, the
                                            for siting                                       industry uses these
                                            facilities.                                      guidelines to aid
                                                                                             in reducing effects
                                                                                             on other regulated
                                                                                             species like eagles
                                                                                             and threatened and
                                                                                             endangered bats.
Electric Bulk Power                221121  Following Avian  Likely minimal effects........  Industry would
 Transmission.                              Power Line                                       likely continue to
                                            Interaction                                      use APLIC
                                            Committee                                        guidelines to
                                            (APLIC)                                          reduce outages
                                            guidelines.                                      caused by birds and
                                                                                             to reduce the take
                                                                                             of eagles,
                                                                                             regulated under the
                                                                                             Bald and Golden
                                                                                             Eagle Protection
                                                                                             Act.
Electric Power Distribution.       221122  Following Avian  Likely minimal effects........  Industry would
                                            Power Line                                       likely continue to
                                            Interaction                                      use APLIC
                                            Committee                                        guidelines to
                                            (APLIC)                                          reduce outages
                                            guidelines.                                      caused by birds and
                                                                                             to reduce the take
                                                                                             of eagles,
                                                                                             regulated under the
                                                                                             Bald and Golden
                                                                                             Eagle Protection
                                                                                             Act.

[[Page 1164]]

 
Wireless Telecommunications        517312  Installation of  Likely minimal effects........  Industry will likely
 Carriers (except Satellite).               flashing                                         continue to install
                                            obstruction                                      flashing
                                            lighting.                                        obstruction
                                                                                             lighting to save
                                                                                             energy costs and to
                                                                                             comply with recent
                                                                                             Federal Aviation
                                                                                             Administration
                                                                                             Lighting Circular
                                                                                             and Federal
                                                                                             Communication
                                                                                             Commission
                                                                                             regulations.
----------------------------------------------------------------------------------------------------------------

    As explained above and in the rationale set forth in Regulatory 
Planning and Review, the economic effects on most or all regulated 
entities will be positive and this rule is not a major rule under 
SBREFA (5 U.S.C. 804(2)). The head of the agency therefore certifies 
that the rule would not have a significant economic impact on a 
substantial number of small entities.

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    This rule is an E.O. 13771 (82 FR 9339, February 3, 2017) 
deregulatory action.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This rule would not ``significantly or uniquely'' affect small 
government activities. A small government agency plan is not required.
    b. This rule would not produce a Federal mandate on local or State 
government or private entities. Therefore, this action is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act.

Takings

    In accordance with E.O. 12630, this rule does not contain a 
provision for taking of private property, and would not have 
significant takings implications. A takings implication assessment is 
not required.

Federalism

    This rule will not create substantial direct effects or compliance 
costs on State and local governments or preempt State law. Some States 
may choose to enact changes in their management efforts and regulatory 
processes and staffing to develop and or implement State laws governing 
birds, likely increasing costs for States. These efforts would require 
increased expenditure of funds, but would not constitute direct 
compliance costs. Therefore, this rule would not have sufficient 
federalism effects to warrant preparation of a federalism summary 
impact statement under E.O. 13132.

Civil Justice Reform

    In accordance with E.O. 12988, we determined that this rule will 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor, and you are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    We evaluated this regulation in accordance with the criteria of the 
National Environmental Policy Act (NEPA), the Department of the 
Interior regulations on Implementation of the National Environmental 
Policy Act (43 CFR 46.10-46.450), and the Department of the Interior 
Manual (516 DM 8). We completed an environmental impact statement (EIS) 
analyzing the potential impacts of a reasonable range of alternatives 
for this action. Based on the analysis contained within the final EIS, 
the Service selected Alternative A--Promulgate regulations that define 
the scope of the MBTA to exclude incidental take. Under Alternative A, 
the Service hereby promulgates a regulation that defines the scope of 
the MBTA take prohibitions to include only actions directed at 
migratory birds. This regulatory change is not expected to change 
current implementation or enforcement of the MBTA. The Service selected 
this alternative because it clarifies our interpretation of the MBTA 
and reduces the regulatory burden on the public without significantly 
affecting the conservation of migratory bird species protected by the 
MBTA. The Service's selection of this alternative and the basis for 
that selection are provided in the Record of Decision signed by the 
Director of the U.S. Fish and Wildlife Service.

Compliance with Endangered Species Act Requirements

    Section 7 of the Endangered Species Act of 1973, as amended (ESA; 
16 U.S.C. 1531-44), requires that ``The Secretary [of the Interior] 
shall review other programs administered by him and utilize such 
programs in furtherance of the purposes of this Act.'' 16 U.S.C. 
1536(a)(1). It further states ``[e]ach Federal agency shall, in 
consultation with and with the assistance of the Secretary, insure that 
any action authorized, funded, or carried out by such agency . . . is 
not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of [critical] habitat.'' 16 U.S.C. 1536(a)(2). We have 
determined that this rule regarding the take of migratory birds will 
have no effect on species listed under the provisions of the ESA. This 
rule does not lessen the requirements under the ESA and thus, species 
listed under the ESA continue to be afforded the full protection of the 
ESA. Therefore, this action will not have any effect on these species.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior's manual at 512 DM 2, we considered the possible effects 
of this rule on federally recognized Indian Tribes. The Department of 
the Interior strives to strengthen its government-to-government 
relationship with Indian Tribes through a commitment to consultation 
with Indian Tribes and recognition of their right to self-governance 
and Tribal sovereignty. We have evaluated this rule under the criteria 
in Executive Order 13175 and under the Department's Tribal consultation 
policy and have determined that this rule may have a substantial direct 
effect on federally recognized Indian Tribes. We received

[[Page 1165]]

requests from nine federally recognized Tribes and two Tribal councils 
for government-to-government consultation. Accordingly, the Service 
initiated government-to-government consultation via letters signed by 
Regional Directors and completed the consultations before issuing this 
final rule. The results of these consultations are summarized in the 
NEPA Record of Decision associated with this rulemaking, published at 
https://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090.

Energy Supply, Distribution, or Use (E.O. 13211)

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. As noted above, this rule is 
a significant regulatory action under E.O. 12866, but the rule is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. The action has not been otherwise 
designated by the Administrator of OIRA as a significant energy action. 
No Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 10

    Exports, Fish, Imports, Law enforcement, Plants, Transportation, 
Wildlife.

Regulation Promulgation

    For the reasons described in the preamble, we amend subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 10--GENERAL PROVISIONS

0
1. The authority citation for part 10 continues to read as follows:

    Authority: 16 U.S.C. 668a-d, 703-712, 742a-j-l, 1361-1384, 1401-
1407, 1531-1543, 3371-3378; 18 U.S.C. 42; 19 U.S.C. 1202.


0
2. Add Sec.  10.14 to subpart B to read as follows:


Sec.  10.14   Scope of the Migratory Bird Treaty Act.

    The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. 703) 
that make it unlawful at any time, by any means or in any manner, to 
pursue, hunt, take, capture, or kill migratory birds, or attempt to 
engage in any of those actions, apply only to actions directed at 
migratory birds, their nests, or their eggs. Injury to or mortality of 
migratory birds that results from, but is not the purpose of, an action 
(i.e., incidental taking or killing) is not prohibited by the Migratory 
Bird Treaty Act.

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-00054 Filed 1-5-21; 11:15 am]
BILLING CODE 4333-15-P