Regulations Governing Take of Migratory Birds; Proposed Rule, 24573-24581 [2021-09700]
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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Proposed Rules
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[FR Doc. 2021–09686 Filed 5–6–21; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 10
[Docket No. FWS–HQ–MB–2018–0090;
FF09M21200–212–FXMB1231099BPP0]
RIN 1018–BD76
Regulations Governing Take of
Migratory Birds; Proposed Rule
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
On January 7, 2021, we, the
U.S. Fish and Wildlife Service (we, the
Service, or USFWS), published a final
rule defining the scope of the Migratory
Bird Treaty Act (MBTA) as it applies to
conduct resulting in the injury or death
of migratory birds protected by the
MBTA. We are now proposing to revoke
that rule for the reasons set forth below.
The effect of this proposed rule would
be to return to implementing the MBTA
SUMMARY:
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as prohibiting incidental take and
applying enforcement discretion,
consistent with judicial precedent.
DATES: We request public comments on
this proposed rule on or before June 7,
2021.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–HQ–MB–2018–0090, which
is the docket number for this action.
Then, click on the Search button. You
may submit a comment by clicking on
‘‘Comment Now!’’ Please ensure you
have located the correct document
before submitting your comments.
(2) By hard copy: Submit by U.S. mail
to: Public Comments Processing, Attn:
FWS–HQ–MB–2018–0090, U.S. Fish
and Wildlife Service, MS: JAO/3W,
5275 Leesburg Pike, Falls Church, VA
22041–3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see Public
Comments, below, for more
information).
FOR FURTHER INFORMATION CONTACT:
Jerome Ford, Assistant Director,
Migratory Birds, at 202–208–1050.
SUPPLEMENTARY INFORMATION: On
January 7, 2021, we published a final
rule defining the scope of the MBTA (16
U.S.C. 703 et seq.) as it applies to
conduct resulting in the injury or death
of migratory birds protected by the
MBTA (86 FR 1134) (hereafter referred
to as the ‘‘January 7 rule’’). The January
7 rule codified an interpretation of the
MBTA set forth in a 2017 legal opinion
of the Solicitor of the Department of the
Interior, Solicitor’s Opinion M–37050,
which concluded that the MBTA does
not prohibit incidental take.
As initially published, the January 7
rule was to become effective 30 days
later, on February 8, 2021. However, on
February 4, 2021, USFWS submitted a
final rule to the Federal Register
correcting the January 7 rule’s effective
date to March 8, 2021, to conform with
its status as a ‘‘major rule’’ under the
Congressional Review Act, which
requires a minimum effective date
period of 60 days, see 5 U.S.C. 801(a)(3)
and 804(2). The final rule extending the
effective date of the January 7 final rule
itself became effective when it was
made available for public inspection in
the reading room of the Office of Federal
Register on February 5, 2021 and was
published in the Federal Register on
February 9, 2021 (86 FR 8715). In that
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document, we also sought public
comment to inform our review of the
January 7 rule and to determine whether
further extension of the effective date is
necessary.
After further review, we decided not
to extend the effective date of the
January 7 rule beyond March 8. We
acknowledge that the January 7 rule will
remain in effect for some period of time
even if it is ultimately determined, after
notice and comment, that it should be
revoked. But, rather than extending the
effective date again, we believe that the
most transparent and efficient path
forward is instead to immediately
propose to revoke the January 7 rule.
This proposed rule provides the public
with notice of our current intent to
revoke the January 7 rule’s
interpretation of the MBTA that it does
not prohibit incidental take, subject to
our final decision after consideration of
public comments.
We have undertaken further review of
the January 7 rule and have determined
that the rule does not reflect the best
reading of the MBTA’s text, purpose,
and history. It is also inconsistent with
the majority of relevant court decisions
addressing the issue, including the
decision of the District Court for the
Southern District of New York that
expressly rejected the rationale offered
in the rule. The rule’s reading of the
MBTA also raises serious concerns with
a United States’ treaty partner, and for
the migratory bird resources protected
by the MBTA and underlying treaties.
Accordingly, we are proposing to revoke
the January 7 rule.
The MBTA statutory provisions at
issue in the January 7 rule have been the
subject of repeated litigation and
diametrically opposed opinions of the
Solicitors of the Department of the
Interior. The longstanding historical
agency practice confirmed in the earlier
Solicitor M-Opinion, M–37041, and
upheld by most reviewing courts, had
been that the MBTA prohibits the
incidental take of migratory birds
(subject to certain legal constraints). The
January 7 rule reversed these several
decades of past agency practice and
interpreted the scope of the MBTA to
exclude incidental take of migratory
birds. In so doing, the January 7 rule
codified Solicitor’s Opinion M–37050,
which itself had been vacated by the
United States District Court for the
Southern District of New York. This
interpretation focused on the language
of section 2 of the MBTA, which, in
relevant part, makes it ‘‘unlawful at any
time, by any means, or in any manner,
to pursue, hunt, take, capture, kill’’
migratory birds or attempt to do the
same. 16 U.S.C. 703(a). Solicitor’s
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Opinion M–37050 and the January 7
rule argued that the prohibited terms
listed in section 2 all refer to conduct
directed at migratory birds, and that the
broad preceding language, ‘‘by any
means, or in any manner,’’ simply
covers all potential methods and means
of performing actions directed at
migratory birds and does not extend
coverage to actions that incidentally
take or kill migratory birds.
As noted above, on August 11, 2020,
a court rejected the interpretation set
forth in Solicitor’s Opinion M–37050 as
contrary to the MBTA and vacated that
opinion. Natural Res. Def. Council v.
U.S. Dep’t of the Interior, 478 F. Supp.
3d 469 (S.D.N.Y. 2020) (‘‘NRDC ’’). In
late January 2021, two new lawsuits
were filed that challenge the January 7
rule. Nat’l Audubon Soc’y v. U.S. Fish
& Wildlife Serv., 1:21–cv–00448
(S.D.N.Y. filed Jan. 19, 2021); State of
New York v. U.S. Dep’t of the Interior,
1:21–cv–00452 (S.D.N.Y. filed Jan. 19,
2021). At the time the January 7 rule
was published, the United States had
filed a notice of appeal of the NRDC
decision in the U.S. Court of Appeals for
the Second Circuit. Since that time, the
United States filed a stipulation to
dismiss that appeal on February 25,
2021, and the Deputy Solicitor
permanently withdrew M–37050 on
March 8, 2021.
The District Court’s decision in NRDC
expressly rejected the basis for the
January 7 rule’s conclusion that the
statute does not prohibit incidental take.
In particular, the court reasoned that the
plain language of the MBTA’s
prohibition on killing protected
migratory bird species ‘‘at any time, by
any means, and in any manner’’ shows
that the MBTA prohibits incidental
killing. See 478 F. Supp. 3d at 481.
Thus, the statute is not limited to
actions directed at migratory birds. After
closely examining the court’s holding,
we are persuaded that it advances the
better reading of the statute, including
that the better reading of ‘‘kill’’ is that
it also prohibits incidental killing.
The interpretation contained in the
January 7 rule relies heavily on United
States v. CITGO Petroleum Corp., 801
F.3d 477 (5th Cir. 2015) (CITGO). The
Fifth Circuit is the only Circuit Court of
Appeals to expressly state that the
MBTA does not prohibit incidental take.
In CITGO, the Fifth Circuit held that the
term ‘‘take’’ in the MBTA does not
include incidental taking because
‘‘take’’ at the time the MBTA was
enacted in 1918 referred in common law
to ‘‘[reducing] animals, by killing or
capturing, to human control’’ and
accordingly could not apply to
accidental or incidental take. Id. at 489
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(following Babbitt v. Sweet Home
Chapter Cmtys. for a Great Or., 515 U.S.
687, 717 (1995) (Scalia J., dissenting)
(Sweet Home)). While we do not agree
with the CITGO court’s interpretation of
the term ‘‘take’’ under the MBTA, we
further note that CITGO does not
provide legal precedent for construing
‘‘kill’’ narrowly. The CITGO court’s
analysis is limited by its terms to
addressing the meaning of the term
‘‘take’’ under the MBTA; thus, any
analysis of the meaning of the term
‘‘kill’’ was not part of the court’s
holding. As discussed below, however,
we also disagree with the CITGO court’s
analysis of the term ‘‘kill.’’
Although the CITGO court’s holding
was limited to interpreting ‘‘take,’’ the
court opined in dicta that the term
‘‘kill’’ is limited to intentional acts
aimed at migratory birds in the same
manner as ‘‘take.’’ See 801 F.3d at 489
n.10. However, the court based this
conclusion on two questionable
premises.
First, the court stated that ‘‘kill’’ has
little if any independent meaning
outside of the surrounding prohibitory
terms ‘‘pursue,’’ ‘‘hunt,’’ ‘‘capture,’’ and
‘‘take,’’ analogizing the list of prohibited
acts to those of two other environmental
statutes—the Endangered Species Act
(ESA) (16 U.S.C. 1531 et seq.) and the
Migratory Bird Conservation Act (16
U.S.C. 715 et seq.). See id. The obvious
problem with this argument is that it
effectively reads the term ‘‘kill’’ out of
the statute; in other words, the CITGO
court’s reasoning renders ‘‘kill’’
superfluous to the other terms
mentioned, thus violating the rule
against surplusage. See, e.g., Corley v.
United States, 556 U.S. 303, 314 (2009).
Second, employing the noscitur a
sociis canon of statutory construction
(which provides that the meaning of an
ambiguous word should be determined
by considering its context within the
words it is associated with), the Fifth
Circuit argued that because the
surrounding terms apply to ‘‘deliberate
acts that effect bird deaths,’’ then ‘‘kill’’
must also. See 801 F.3d at 489 n.10. The
January 7 rule also relied heavily on this
canon to argue that both ‘‘take’’ and
‘‘kill’’ must be read as deliberate acts in
concert with the other referenced terms.
Upon closer inspection though, the only
terms that clearly and unambiguously
refer to deliberate acts are ‘‘hunt’’ and
‘‘pursue.’’ Both the CITGO court and the
January 7 final rule erroneously
determined that ‘‘capture’’ can also only
be interpreted as a deliberate act. This
is not so. There are many examples of
unintentional or incidental capture,
such as incidental capture in traps
intended for animals other than birds or
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in netting designed to prevent swallows
nesting under bridges. Thus, the CITGO
court’s primary argument that ‘‘kill’’
only applies to ‘‘deliberate actions’’
rests on the fact that just two of the five
prohibited actions unambiguously
describe deliberate acts. The fact that
most of the prohibited terms can be read
to encompass actions that are not
deliberate in nature is a strong
indication that Congress did not intend
those terms to narrowly apply only to
direct actions.
The NRDC court similarly rejected the
January 7 rule’s interpretation of the
term ‘‘kill’’ and its meaning within the
context of the list of actions prohibited
by the MBTA. The court noted the
broad, expansive language of section 2
prohibiting hunting, pursuit, capture,
taking, and killing of migratory birds
‘‘by any means or in any manner.’’ 478
F. Supp. 3d at 482. The court reasoned
that the plain meaning of this language
can only be construed to mean that
activities that result in the death of a
migratory bird are a violation
‘‘irrespective of whether those activities
are specifically directed at wildlife.’’ Id.
The court also noted that the Sweet
Home decision relied upon by the
CITGO court and the January 7 rule
actually counsels in favor of a broad
reading of the term ‘‘kill,’’ even
assuming Justice Scalia accurately
defined the term ‘‘take’’ in his dissent.
The Sweet Home case dealt specifically
with the definition of ‘‘take’’ under the
ESA, which included the terms ‘‘harm’’
and ‘‘kill.’’ The majority in Sweet Home
was critical of the consequences of
limiting liability under the ESA to
‘‘affirmative conduct intentionally
directed against a particular animal or
animals,’’ reasoning that knowledge of
the consequences of an act are sufficient
to infer liability, including typical
incidental take scenarios. Id. at 481–82.
The NRDC court went on to criticize
the use of the noscitur a sociis canon in
Solicitor’s Opinion M–37050 (a use
repeated in the January 7 rule). The
court reasoned that the term ‘‘kill’’ is
broad and can apply to both intentional,
unintentional, and incidental conduct.
The court faulted the Solicitor’s narrow
view of the term and disagreed that the
surrounding terms required that narrow
reading. To the contrary, the court
found the term ‘‘kill’’ to be broad and
not at all ambiguous, pointedly noting
that proper use of the noscitur canon is
confined to interpreting ambiguous
statutory language. Moreover, use of the
noscitur canon deprives ‘‘kill’’ of any
independent meaning, which runs
headlong into the canon against
surplusage as noted above. The court
did not agree that an example provided
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by the government demonstrated that
‘‘kill’’ had independent meaning from
‘‘take’’ under the interpretation
espoused by Solicitor’s Opinion M–
37050. By analogy, the court referenced
the Supreme Court’s rejection of the
dissent’s use of the noscitur canon in
Sweet Home, which similarly gave the
term ‘‘harm’’ the same essential function
as the surrounding terms used in the
definition of ‘‘take’’ under the ESA,
denying it independent meaning. See id.
at 484.
In sum, after further review of the
CITGO and NRDC decisions, along with
the language of the statute, we now
conclude that the interpretation of the
MBTA set forth in the January 7 rule
and Solicitor’s Opinion M–37050,
which provided the basis for that
interpretation, is not the construction
that best accords with the text,
purposes, and history of the MBTA. It
simply cannot be squared with the
NRDC court’s holding that the MBTA’s
plain language encompasses the
incidental killing of migratory birds.
Even if the NRDC court’s plain-language
analysis were incorrect, the operative
language of the MBTA is at minimum
ambiguous, thus USFWS has discretion
to implement that language in a manner
consistent with the conservation
purposes of the statute and its
underlying Conventions. To the extent
that the primary policy justifications for
the January 7 rule were resolving
uncertainty and increasing transparency
through rulemaking, we do not consider
these concerns to outweigh the legal
infirmities of the January 7 rule or the
conservation purposes of the statute and
its underlying Conventions. Interpreting
the statute to exclude incidental take is
not the reading that best advances these
purposes, which is underscored by the
following additional reasons for
revoking the current regulation.
First, the January 7 rule is
undermined by the 2002 legislation
authorizing military-readiness activities
that incidentally take or kill migratory
birds. In that legislation, Congress
temporarily exempted ‘‘incidental
taking’’ caused by military-readiness
activities from the prohibitions of the
MBTA; required the Secretary of
Defense to identify, minimize, and
mitigate the adverse effect of militaryreadiness activities on migratory birds;
and directed USFWS to issue
regulations under the MBTA creating a
permanent exemption for militaryreadiness activities. Bob Stump National
Defense Authorization Act for Fiscal
Year 2003, Public Law 107–314, Div. A,
Title III, section 315 (2002), 116 Stat.
2509 (Stump Act). This legislation was
enacted in response to a court ruling
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that had enjoined military training that
incidentally killed migratory birds. Ctr.
for Biological Diversity v. Pirie, 191 F.
Supp. 2d 161 and 201 F. Supp. 2d 113
(D.D.C. 2002), vacated on other grounds
sub nom. Ctr. for Biological Diversity v.
England, 2003 U.S. App. Lexis 1110
(D.C. Cir. Jan. 23, 2003). Notably,
Congress did not amend the MBTA to
define the terms ‘‘take’’ or ‘‘kill.’’
Instead, Congress itself uses the term
‘‘incidental take’’ and provides that the
MBTA ‘‘shall not apply’’ to such take by
the Armed Forces during ‘‘militaryreadiness activities.’’ Moreover,
Congress limited the exemption only to
military-readiness activities to training
and operations related to combat and
the testing of equipment for combat use;
it expressly excluded routine militarysupport functions and the ‘‘operation of
industrial activities’’ from the
exemption afforded by the 2002
legislation, leaving such non-combatrelated activities fully subject to the
prohibitions of the Act. Even then, the
military-readiness incidental take carveout was only temporarily effectuated
through the statute itself. Congress
further directed the Department of the
Interior (DOI or the Department) ‘‘to
prescribe regulations to exempt the
Armed Forces for the incidental taking
of migratory birds during military
readiness activities.’’ This would be an
odd manner in which to proceed to
address the issue raised by the Pirie case
if Congress’ governing understanding at
the time was that incidental take of any
kind was not covered by the Act (we
acknowledge that Congress’s
understanding when enacting
legislation in 2002 is relevant to, but not
dispositive of, Congress’s intent when it
enacted the MBTA in 1918). Congress
simply could have amended the MBTA
to clarify that incidental take is not
prohibited by the statute or, at the least,
that take incidental to military-readiness
activities is not prohibited. Instead,
Congress limited its amendment to
exempting incidental take only by
military-readiness activities, expressly
excluded other military activities from
the exemption, and further directed DOI
to issue regulations delineating the
scope of the military-readiness carve-out
from the prohibitions of the Act. All of
these factors indicate that Congress
understood that the MBTA’s take and
kill prohibitions included what
Congress itself termed ‘‘incidental take.’’
In arguing that Congress’s
authorization of incidental take during
military-readiness activities did not
authorize enforcement of incidental take
in other contexts, the January 7 rule
cites the CITGO court’s conclusion that
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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. It
is true that the Stump Act clearly did
not, by its terms, authorize enforcement
of incidental take in other contexts. It
clearly could not do anything of the
sort, based on its narrow application to
military-readiness activities. Rather, the
logical explanation is that Congress
considered that the MBTA already
prohibited incidental take (particularly
given USFWS’s enforcement of
incidental take violations over the prior
three decades) and there was no
comprehensive regulatory mechanism
available to authorize that take. Thus, it
was necessary to temporarily exempt
incidental take pursuant to militaryreadiness activities to address the Pirie
case and direct USFWS to create a
permanent exemption. This conclusion
is supported by the fact that Congress
specifically stated in the Stump Act that
the exemption did not apply to certain
military activities that do not meet the
definition of military readiness,
including operation of industrial
activities and routine military-support
functions.
On closer inspection, the CITGO
court’s analysis of the purposes behind
enactment of the military-readiness
exemption is circular. Assuming the
military-readiness exemption is
necessary because the MBTA otherwise
prohibits incidental take only represents
an implicit and huge expansion of
coverage under the MBTA if it is
assumed that the statute did not already
prohibit incidental take up to that point.
But Congress would have had no need
to enact the exemption if the MBTA did
not—both on its terms and in Congress’s
understanding—prohibit incidental
take. The adoption of a provision to
exempt incidental take in one specific
instance is merely a narrowly tailored
exception to the general rule, and
provides clear evidence of what
Congress understood the MBTA to
prohibit.
Second, further consideration of
concerns expressed by one of our treaty
partners counsels in favor of revoking
the January 7 rule. The MBTA
implements four bilateral migratory bird
Conventions with Canada, Mexico,
Russia, and Japan. See 16 U.S.C. 703–
705, 712. The Government of Canada
communicated its concerns with the
January 7 rule both during and after the
rulemaking process, including
providing comments on the
environmental impact statement (EIS)
associated with the rule.
After the public notice and comment
period had closed, Canada’s Minister of
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Environment and Climate Change
summarized the Government of
Canada’s concerns in a public statement
issued on December 18, 2020 (https://
www.canada.ca/en/environmentclimate-change/news/2020/12/ministerwilkinson-expresses-concern-overproposed-regulatory-changes-to-theunited-states-migratory-bird-treatyact.html). Minister Wilkinson voiced
the Government of Canada’s concern
regarding ‘‘the potential negative
impacts to our shared migratory bird
species’’ of allowing the incidental take
of migratory birds under the MBTA rule
and ‘‘the lack of quantitative analysis to
inform the decision.’’ He noted that the
‘‘Government of Canada’s interpretation
of the proposed changes . . . is that
they are not consistent with the
objectives of the Convention for the
Protection of Migratory Birds in the
United States and Canada.’’
Additionally, in its public comments on
the draft EIS for the MBTA rule, Canada
stated that it believes the rule ‘‘is
inconsistent with previous
understandings between Canada and the
United States (U.S.), and is inconsistent
with the long-standing protections that
have been afforded to non-targeted birds
under the Convention for the Protection
of Migratory Birds in the United States
and Canada . . . as agreed upon by
Canada and the U.S. through Article I.
The removal of such protections will
result in further unmitigated risks to
vulnerable bird populations protected
under the Convention.’’ After further
consideration, we have similar concerns
to those of our treaty partner, Canada.
The protections for ‘‘non-targeted
birds’’ noted by the Canadian Minister
are part and parcel of the Canada
Convention, as 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, which protects
not only game birds hunted and trapped
for sport and food, but also nongame
birds and insectivorous birds. For
instance, the preamble to the
Convention declares ‘‘saving from
indiscriminate slaughter and of insuring
the preservation of such migratory birds
as are either useful to man or are
harmless’’ as its very purpose and
declares that ‘‘many of these species are
. . . in danger of extermination through
lack of adequate protection during the
nesting season or while on their way to
and from their breeding grounds.’’
Convention between the United States
and Great Britain (on behalf of Canada)
for the Protection of Migratory Birds, 39
Stat. 1702 (Aug. 16, 1916). Thus,
whether one argues that the language of
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section 2 of the MBTA plainly prohibits
incidental killing of migratory birds or
is ambiguous in that regard, an
interpretation that excludes incidental
killing is difficult to square with the
express conservation purposes of the
Canada Convention. Moreover, until
recently there had been a longstanding
‘‘mutually held interpretation’’ between
the two treaty partners that regulating
incidental take is consistent with the
underlying Convention, as stated in an
exchange of Diplomatic Notes in 2008.
While Canada expressed its position
before the final rule on January 7, upon
review, we now have determined that
the concerns raised by the United
States’ treaty partner counsel in favor of
revocation of the rule.
In addition to the Canada Convention,
the January 7 rule may also be
inconsistent with the migratory bird
conventions with Mexico, Japan, and
Russia. The Japan and Russia
Conventions both broadly call for the
parties to prevent damage to birds from
pollution. See 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, Mar. 4, 1972, 25 U.S.T.
3329 (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, Nov. 19, 1976, 29 U.S.T.
4647 (Russia Convention). The Protocols
amending the Canada and Mexico
Conventions contain similar language
calling for the parties to seek means to
prevent damage to birds and their
environment from pollution. 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, Dec. 14,
1995, S. Treaty Doc. No. 104–28,
T.I.A.S. 12721; Protocol Between the
Government of the United States of
America and the Government of the
United Mexican States Amending the
Convention for the Protection of
Migratory Birds and Game Mammals,
May 5, 1997, S. Treaty Doc. No. 105–26.
Some of the relevant provisions
include Article IV of the Protocol with
Canada, which states that each party
shall use its authority to ‘‘take
appropriate measures to preserve and
enhance the environment of migratory
birds,’’ and in particular shall ‘‘seek
means to prevent damage to [migratory]
birds and their environments, including
damage resulting from pollution’’;
Article I of the Mexico Convention,
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which discusses protecting migratory
birds by ‘‘means of adequate
methods[. . .]’’; Article VI(a) of the
Japan Convention, which provides that
parties shall ‘‘[s]eek means to prevent
damage to such birds and their
environment, including, especially,
damage resulting from pollution of the
seas’’; and Articles IV(1) and 2(c) of the
Russia Convention, which require
parties to ‘‘undertake measures
necessary to protect and enhance the
environment of migratory birds and to
prevent and abate the pollution or
detrimental alteration of that
environment,’’ and, in certain special
areas, undertake, to the maximum
extent possible, ‘‘measures necessary to
protect the ecosystems in those special
areas . . . against pollution, detrimental
alteration and other environmental
degradation.’’
The January 7 rule eliminates a source
of liability for pollution that
incidentally takes and kills migratory
birds, a position that is difficult to
square with the mutually agreed-upon
treaty provisions agreeing to prevent
damage to birds from pollution. The
January 7 rule does not directly affect
natural resource damage assessments
conducted under the Comprehensive
Environmental Response Compensation
and Liability Act, the Oil Pollution Act,
and the Clean Water Act to determine
compensation to the public for lost
natural resources and their services
from accidents that have environmental
impacts, such as oil spills. However, for
oils spills such as the BP Deepwater
Horizon Gulf oil spill and the Exxon
Valdez oil spill in Alaska, significant
penalties were levied in addition to
those calculated under natural resource
damage assessments based on
incidental-take liability under the
MBTA. Those fines constituted a large
proportion of the total criminal fines
and civil penalties associated with
historical enforcement of incidental take
violations. As noted in the EIS, the
January 7 rule eliminates the Federal
Government’s ability to levy similar
fines in the future, thereby reducing the
deterrent effect of the MBTA and
reducing funding for the North
American Wetland Conservation Fund
for the protection and restoration of
wetland habitat for migratory birds.
In sum, the issues raised by the
Government of Canada raise significant
concerns regarding whether the January
7 rule is consistent with the Canada
Convention, and questions also remain
regarding that rule’s consistency with
the other migratory bird Conventions.
We note as well that the primary policy
justifications for the January 7 rule were
resolving uncertainty and increasing
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transparency through rulemaking. These
concerns, however, do not outweigh the
legal infirmities of the January 7 rule or
the conservation objectives described
above. On these bases, in addition to the
legal concerns raised above, we are
proposing to revoke the MBTA rule.
Public Comments
We solicit public comments on the
following topics:
1. Whether we should revoke the rule,
as proposed here, and why or why not;
2. The costs or benefits of revoking
the rule;
3. The costs or benefits of leaving the
rule in place; and
4. Any reliance interests that might be
affected by revoking the rule, or not
revoking the rule.
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed in
ADDRESSES. If you provided comments
in response to the February 9, 2021, rule
(86 FR 8715) to extend the effective date
of the January 7 rule, you do not need
to resubmit those comments in response
to this proposed rule. The USFWS will
consider all comments pertaining to the
January 7 rule that were submitted in
response to the February 9, 2021, rule in
determining whether to revoke the
January 7 rule. Comments must be
submitted to https://www.regulations.gov
before 11:59 p.m. (Eastern Time) on the
date specified in DATES. We will not
consider mailed comments that are not
postmarked by the date specified in
DATES.
We will post your entire comment—
including your personal identifying
information—on https://
www.regulations.gov. If you provide
personal identifying information in your
comment, you may request at the top of
your document that we withhold this
information from public review.
However, we cannot guarantee that we
will be able to do so. Comments and
materials we receive will be available
for public inspection on https://
www.regulations.gov.
both include and exclude incidental
take. If we finalize this proposed rule,
we will publish an amended Record of
Decision that explains our decision to
instead select the environmentally
preferable alternative, or Alternative B,
in the final EIS. If we determine that any
additional, relevant impacts on the
human environment have occurred
subsequent to our existing Record of
Decision, we will describe those
impacts in the amended Record of
Decision.
National Environmental Policy Act
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 the January 7 rule
that this proposed rule would revoke
under the criteria in Executive Order
13175 and under the Department’s
Tribal consultation policy and
determined that the January 7 rule may
have a substantial direct effect on
federally recognized Indian Tribes. We
received requests from nine federally
recognized Tribes and two Tribal
councils for government-to-government
consultation on that rule. Accordingly,
the Service initiated government to
government consultation via letters
signed by Regional Directors and
completed the consultations before
issuing the January 7 final rule.
During these consultations, there was
unanimous opposition from Tribes to
the re-interpretation of the MBTA to
exclude coverage of incidental take
under the January 7 rule. Thus, this
proposal to revoke the January 7 rule is
consistent with the requests of federally
recognized Tribes during those
consultations.
Because we are proposing to revoke
the January 7 MBTA rule, we will rely
on the final EIS developed to analyze
that rule in determining the
environmental impacts of revoking it:
‘‘Final Environmental Impact Statement;
Regulations Governing Take of
Migratory Birds,’’ available on https://
www.regulations.gov in Docket No.
FWS–HQ–MB–2018–0090. The
alternatives analyzed in that EIS cover
the effects of interpreting the MBTA to
Energy Supply Distribution
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 the
Office of Information and Regulatory
Required Determinations
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24577
Affairs (OIRA) in the Office of
Management and Budget (OMB) as a
significant energy action. Therefore, no
Statement of Energy Effects is required.
Endangered Species Act
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
proposing the revocation of the January
7 rule regarding the take of migratory
birds will have no effect on ESA-listed
species within the meaning of ESA
Section 7(a)(2).
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 proposed rule is
economically 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 proposed rule in a manner
consistent with these requirements.
This proposed regulation would
revoke the January 7 MBTA rule. The
legal effect of this proposal would be to
remove from the Code of Federal
Regulations (CFR) the interpretation that
incidental take of migratory birds is not
prohibited under the MBTA, based on
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the rationale explained in the preamble.
As explained in the preamble, the
Solicitor’s Opinion (M–37050) that
formed the basis for the January 7 rule
was overturned in court and has since
been withdrawn by the Solicitor’s
Office. By removing § 10.14 from
subpart B of title 50 CFR, USFWS would
revert to implementing the statute
without an interpretative regulation
governing incidental take, consistent
with judicial precedent. This would
mean that incidental take can violate the
MBTA to the extent consistent with the
statute and judicial precedent.
Enforcement discretion would be
applied, subject to certain legal
constraints.
The Service conducted a regulatory
impact analysis of the January 7 rule,
which can be viewed online at https://
www.regulations.gov in Docket No.
FWS–HQ–MB–2018–0090. In that
analysis, we analyzed the effects of an
alternative (Alternative B) where the
Service would promulgate a regulation
that interprets the MBTA to prohibit
incidental take consistent with the
Department’s longstanding prior
interpretation. By reverting to this
interpretation, the Service would view
the incidental take of migratory birds as
a potential violation of the MBTA,
consistent with judicial precedent. The
Regulatory Impact Analysis for this
proposed rule can be viewed online at
https://www.regulations.gov in Docket
No. FWS–HQ–MB–2018–0090. The
primary benefit of this rule results from
decreased incidental take. While we are
unable to quantify the benefits, we
expect this rule to result in increased
ecosystem services and benefits to
businesses that rely on these services.
Further, benefits will accrue from
increased bird watching opportunities.
The primary cost of this rule is the
compliance cost incurred by industry,
which is also not quantifiable. Firms are
more likely to implement best practice
measures to avoid potential fines.
Additionally, potential fines generate
transfers from industry to the
government. Using a 10-year time
horizon (2022–2031), the present value
of these transfers is estimated to be
$73.6 million at a 7-percent discount
rate and $67.1 million at a 3-percent
discount rate. This would equate to an
annualized value of $15.6 million at a
7-percent discount rate and $15.3
million at a 3-percent discount rate.
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). We
prepared an Initial Regulatory
Flexibility Analysis, briefly summarized
below, to accompany this rule that can
be viewed online at https://
www.regulations.gov in Docket No.
FWS–HQ–MB–2018–0090.
The proposed rule may affect
industries that typically incidentally
take substantial numbers of birds and
with which the Service has worked to
reduce those effects (Table 1). 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. It is important
to note that many small businesses
would not be affected if we ultimately
promulgate this proposed rule. Only
those businesses that reduced best
management practices that avoid or
minimize incidental take of migratory
birds as a result of the issuance of M–
37050 in January 2017 and the January
7, 2021, rule would incur costs. If we
promulgate this proposed rule, those
businesses would presumably reinstate
those best management practices. We
are requesting public comment on the
number of businesses that reduced best
management practices and the resulting
cost savings as a direct result of
issuance of M–37050 and the January 7
rule.
TABLE 1—DISTRIBUTION OF BUSINESSES WITHIN AFFECTED INDUSTRIES
NAICS industry description
NAICS code
Finfish Fishing ..................................................................................
Crude Petroleum and Natural Gas Extraction .................................
Drilling Oil and Gas Wells ...............................................................
Solar Electric Power Generation .....................................................
Wind Electric Power Generation .....................................................
Electric Bulk Power Transmission ...................................................
Electric Power Distribution ...............................................................
Wireless Telecommunications Carriers (except Satellite) ...............
114111
211111
213111
221114
221115
221121
221122
517312
Number of
businesses
Small
business
size standard
(number of
employees)
1,210
6,878
2,097
153
264
261
7,557
15,845
a 20
1,250
1,000
250
250
500
1,000
1,500
Number of
small
businesses
1,185
6,868
2,092
153
263
214
7,520
15,831
Source: U.S. Census Bureau, 2012 County Business Patterns.
a Note: The SBA 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 currently
have a permitting system dedicated to
authorizing incidental take of migratory
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birds, the Service does not have specific
information regarding how many
businesses in each sector implement
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measures to reduce incidental take of
birds. Not all businesses in each sector
incidentally take birds. In addition, a
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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 Opinion
M–37050 or issuance of the January 7
rule. We did not receive sufficient
information on that issue during the
public comment periods associated with
the January 7 rule and associated NEPA
analysis or the February 9 rule
extending the effective date of the
January 7 rule. We reiterate our request
for public comment on these issues for
this proposed rule.
If this proposed rulemaking results in
revoking the January 7 rule, any
subsequent incidental take of migratory
birds could violate the MBTA,
consistent with the statute and judicial
precedent. Some small entities would
incur costs if they reduced best
management practices after M-Opinion
37050 was issued in January 2017 or
after promulgation of the January 7,
2021, rule and would need to
subsequently reinstate those practices if
the January 7 rule is revoked, assuming
they did not already reinstate such
practices after vacatur of M-Opinion
37050.
Summary
Table 2 identifies examples of bird
mitigation measures, their associated
costs, and why available data are not
extrapolated to the entire industry
sector or small businesses. We are
requesting public comment so we can
extrapolate data, if appropriate, to each
industry sector and any affected small
businesses. Table 3 summarizes likely
economic effects of the proposed rule on
the business sectors identified in Table
24579
1. In many cases, 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. We are requesting public
comment regarding this estimate. As
shown by the limited data in Table 3,
we are also requesting public comment
for the finfish fishing and solar power
electric generation industries to
determine significance. The likely
economic effects summarized in Table 3
are based on the RFA analysis for the
January 7 rule. We solicited public
comments on these issues during the
public comment periods associated with
the January 7 rule and associated NEPA
analysis and the February 9 rule
extending the effective date of the
January 7 rule. We reiterate our request
for public comment on these data for
this proposed rule.
TABLE 2—BEST MANAGEMENT PRACTICES COSTS BY INDUSTRY 1
NAICS industry
Example of bird mitigation measure
Finfish Fishing (NAICS
11411).
Changes in design of longline fishing hooks,
changes in offal management practices,
use of flagging or streamers on fishing
lines.
Estimated cost
•
•
•
•
•
•
Crude Petroleum and
• Netting of oil pits and ponds ......................
Natural Gas Extrac- • Closed wastewater systems.
tion NAICS (211111).
•
•
•
Costs are per vessel per year ....................
$1,400 for thawed blue-dyed bait.
$150 for 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.
$130,680 to $174,240 per acre to net
ponds..
Most netted pits are 1⁄4 to 1⁄2 acre.
Cost not available for wastewater systems.
Drilling Oil and Gas
Wells (NAICS
213111).
• Netting of oil pits and ponds ......................
• Closed loop drilling fluid systems.
• $130,680 to $174,240 per acre to net
ponds..
• Cost not available for closed loop drilling
fluid systems, but may be a net cost savings in arid areas with water conservation
requirements.
Solar Electric Power
Generation (NAICS
221114).
Wind Electric Power
Generation (NAICS
221115).
Pre- and post-construction bird surveys ........
No public comments received on January 7
rule to estimate costs.
• Pre-construction adjustment of turbine locations to minimize bird mortality during
operations.
• Pre- and post-construction bird surveys.
• Retrofit power poles to minimize eagle
mortality.
Electric Bulk Power
Transmission
(NAICS 221121).
Electric Power Distribution (NAICS
221122).
Retrofit power poles to minimize eagle mortality.
• Cost not available for adjustment of turbine
construction locations.
• $100,000 to $500,000 per facility per year
for pre-construction site use and post-construction bird mortality surveys.
• $7,500 per power pole with high variability
of cost
• Annual nationwide labor cost to implement
wind energy guidelines: $17.6M.
• Annual nationwide non-labor cost to implement wind energy guidelines: $36.9M.
$7,500 per power pole with high variability of
cost.
Retrofit power poles to minimize eagle mortality.
$7,500 per power pole with high variability of
cost.
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Why data are not extrapolated to entire
industry or small businesses
• No data available on fleet size.
• No data available on how many measures
are employed on each vessel.
• Infeasible to net pits larger than 1 acre
due to sagging.
• Size distribution of oil pits is unknown.
• Average number of pits per business is
unknown.
• Closed wastewater systems typically used
for reasons other than bird mitigation.
• Infeasible to net pits larger than 1 acre
due to sagging.
• Size distribution of oil pits is unknown.
• Average number of pits per business is
unknown.
• Closed loop drilling fluid systems typically
used for reasons other than bird mitigation.
• High variability in number of wells drilled
per year (21,200 in 2019).
New projects can vary from 100 to 5,000
acres in size, and mortality surveys may
not scale linearly.
• Data not available for adjustment of turbine construction locations.
• High variability in survey costs and high
variability in need to conduct surveys.
• High variability in cost and need to retrofit
power poles.
High variability in cost and need to retrofit
power poles.
High variability in cost and need to retrofit
power poles.
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TABLE 2—BEST MANAGEMENT PRACTICES COSTS BY INDUSTRY 1—Continued
NAICS industry
Example of bird mitigation measure
Wireless Tele-communications Carriers
(except Satellite)
(NAICS 517312).
• Extinguish non-flashing lights on towers
taller than 350′.
• Retrofit towers shorter than 350′ with LED
flashing lights.
Why data are not extrapolated to entire
industry or small businesses
Estimated cost
• Industry saves hundreds of dollars per
year in electricity costs by extinguishing
lights.
• Retrofitting with LED lights requires initial
cost outlay, which is recouped over time
due to lower energy costs and reduced
maintenance.
Data not available for number of operators
who have implemented these practices.
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 3—SUMMARY OF ECONOMIC EFFECTS ON SMALL BUSINESSES
NAICS industry description
(NAICS code)
Potential bird mitigation
measures under
this proposed rule
Economic effects on small
businesses
Rationale
Finfish Fishing (11411) ..............
Changes in design of longline
fishing hooks, changes in
offal management practices,
and flagging/streamers on
fishing lines.
Using closed waste-water systems or netting of oil pits and
ponds.
Likely minimal effects ...............
Drilling Oil and Gas Wells
(213111).
Using closed waste-water systems or netting of oil pits and
ponds.
Likely minimal effects ...............
Solar Electric Power Generation
(221114).
Monitoring bird use and mortality at facilities, limited use
of deterrent systems such as
streamers and reflectors.
Following Wind Energy Guidelines, which involve conducting risk assessments for
siting facilities.
Likely minimal effects ...............
Seabirds are specifically excluded from the definition of bycatch under the Magnuson-Stevens Fishery Conservation
and Management Act and, therefore, seabirds not listed
under the ESA may not be covered by any mitigation measures. The impact of this on small entities is unknown.
Thirteen States have regulations governing the treatment of oil
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 proposed rule is unlikely to affect a significant number of small entities.
Thirteen States have regulations governing the treatment of oil
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 proposed rule is unlikely to affect a significant number of small entities.
Bird monitoring in some States may continue to be required
under State policies. The number of States and the policy
details are unknown.
Electric Bulk Power Transmission (221121).
Following Avian Power Line
Interaction Committee
(APLIC) guidelines.
Likely minimal effects ...............
Electric Power Distribution
(221122).
Following Avian Power Line
Interaction Committee
(APLIC) guidelines.
Likely minimal effects ...............
Wireless Tele-communications
Carriers (except Satellite)
(517312).
Installation of flashing obstruction lighting.
Likely minimal effects ...............
Crude Petroleum and Natural
Gas Extraction (211111).
Wind Electric Power Generation
(221115).
While the Service concludes that
certification is likely appropriate in this
case, and consistent with our analysis of
economic impacts under the January 7
rule, we have developed an IRFA out of
an abundance of caution to ensure that
economic impacts on small entities are
fully accounted for in this rulemaking
process.
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 proposed rule would not
‘‘significantly or uniquely’’ affect small
government activities. A small
government agency plan is not required.
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Likely minimal effects ...............
Likely minimal effects ...............
Following the Wind Energy Guidelines has become industry
best practice and would likely continue. In addition, the industry uses these guidelines to aid in reducing effects on
other regulated species like eagles and threatened and endangered bats.
Industry would likely continue to use APLIC guidelines to reduce outages caused by birds and to reduce the take of eagles, regulated under the Bald and Golden Eagle Protection
Act.
Industry would likely continue to use APLIC guidelines to reduce outages caused by birds and to reduce the take of eagles, regulated under the Bald and Golden Eagle Protection
Act.
Industry will likely continue to install flashing obstruction lighting to save energy costs and to comply with recent Federal
Aviation Administration Lighting Circular and Federal Communication Commission regulations.
b. This proposed rule would not
produce a Federal mandate on local or
State government or private entities.
Therefore, this proposed action is not a
‘‘significant regulatory action’’ under
the Unfunded Mandates Reform Act.
Takings
In accordance with E.O. 12630, this
proposed 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 proposed rule will not create
substantial direct effects or compliance
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costs on State and local governments or
preempt State law. Some States may
choose not to enact changes in their
management efforts and regulatory
processes and staffing to develop and or
implement State laws governing birds,
likely accruing benefits for States.
Therefore, this proposed 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
determine that this proposed rule will
not unduly burden the judicial system
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and meets the requirements of sections
3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
This proposed 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.
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24581
List of Subjects in 50 CFR Part 10
Exports, Fish, Imports, Law
enforcement, Plants, Transportation,
Wildlife.
Authority: 16 U.S.C. 668a–668d, 703–712,
742a–742j–l, 1361–1384, 1401–1407, 1531–
1543, 3371–3378; 18 U.S.C. 42; 19 U.S.C.
1202.
Proposed Regulation Removal
For the reasons described in the
preamble, we hereby propose to amend
subchapter B of chapter I, title 50 of the
Code of Federal Regulations as set forth
below:
■
PART 10—GENERAL PROVISIONS
2. Remove § 10.14.
Shannon A. Estenoz,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks, Exercising the
Delegated Authority of the Assistant Secretary
for Fish and Wildlife and Parks.
[FR Doc. 2021–09700 Filed 5–6–21; 8:45 am]
BILLING CODE 4333–15–P
1. The authority citation for part 10
continues to read as follows:
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[Federal Register Volume 86, Number 87 (Friday, May 7, 2021)]
[Proposed Rules]
[Pages 24573-24581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09700]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 10
[Docket No. FWS-HQ-MB-2018-0090; FF09M21200-212-FXMB1231099BPP0]
RIN 1018-BD76
Regulations Governing Take of Migratory Birds; Proposed Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: On January 7, 2021, we, the U.S. Fish and Wildlife Service
(we, the Service, or USFWS), published a final rule defining the scope
of the Migratory Bird Treaty Act (MBTA) as it applies to conduct
resulting in the injury or death of migratory birds protected by the
MBTA. We are now proposing to revoke that rule for the reasons set
forth below. The effect of this proposed rule would be to return to
implementing the MBTA as prohibiting incidental take and applying
enforcement discretion, consistent with judicial precedent.
DATES: We request public comments on this proposed rule on or before
June 7, 2021.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-MB-2018-0090,
which is the docket number for this action. Then, click on the Search
button. You may submit a comment by clicking on ``Comment Now!'' Please
ensure you have located the correct document before submitting your
comments.
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-MB-2018-0090, U.S. Fish and Wildlife Service,
MS: JAO/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director,
Migratory Birds, at 202-208-1050.
SUPPLEMENTARY INFORMATION: On January 7, 2021, we published a final
rule defining the scope of the MBTA (16 U.S.C. 703 et seq.) as it
applies to conduct resulting in the injury or death of migratory birds
protected by the MBTA (86 FR 1134) (hereafter referred to as the
``January 7 rule''). The January 7 rule codified an interpretation of
the MBTA set forth in a 2017 legal opinion of the Solicitor of the
Department of the Interior, Solicitor's Opinion M-37050, which
concluded that the MBTA does not prohibit incidental take.
As initially published, the January 7 rule was to become effective
30 days later, on February 8, 2021. However, on February 4, 2021, USFWS
submitted a final rule to the Federal Register correcting the January 7
rule's effective date to March 8, 2021, to conform with its status as a
``major rule'' under the Congressional Review Act, which requires a
minimum effective date period of 60 days, see 5 U.S.C. 801(a)(3) and
804(2). The final rule extending the effective date of the January 7
final rule itself became effective when it was made available for
public inspection in the reading room of the Office of Federal Register
on February 5, 2021 and was published in the Federal Register on
February 9, 2021 (86 FR 8715). In that document, we also sought public
comment to inform our review of the January 7 rule and to determine
whether further extension of the effective date is necessary.
After further review, we decided not to extend the effective date
of the January 7 rule beyond March 8. We acknowledge that the January 7
rule will remain in effect for some period of time even if it is
ultimately determined, after notice and comment, that it should be
revoked. But, rather than extending the effective date again, we
believe that the most transparent and efficient path forward is instead
to immediately propose to revoke the January 7 rule. This proposed rule
provides the public with notice of our current intent to revoke the
January 7 rule's interpretation of the MBTA that it does not prohibit
incidental take, subject to our final decision after consideration of
public comments.
We have undertaken further review of the January 7 rule and have
determined that the rule does not reflect the best reading of the
MBTA's text, purpose, and history. It is also inconsistent with the
majority of relevant court decisions addressing the issue, including
the decision of the District Court for the Southern District of New
York that expressly rejected the rationale offered in the rule. The
rule's reading of the MBTA also raises serious concerns with a United
States' treaty partner, and for the migratory bird resources protected
by the MBTA and underlying treaties. Accordingly, we are proposing to
revoke the January 7 rule.
The MBTA statutory provisions at issue in the January 7 rule have
been the subject of repeated litigation and diametrically opposed
opinions of the Solicitors of the Department of the Interior. The
longstanding historical agency practice confirmed in the earlier
Solicitor M-Opinion, M-37041, and upheld by most reviewing courts, had
been that the MBTA prohibits the incidental take of migratory birds
(subject to certain legal constraints). The January 7 rule reversed
these several decades of past agency practice and interpreted the scope
of the MBTA to exclude incidental take of migratory birds. In so doing,
the January 7 rule codified Solicitor's Opinion M-37050, which itself
had been vacated by the United States District Court for the Southern
District of New York. This interpretation focused on the language of
section 2 of the MBTA, which, in relevant part, makes it ``unlawful at
any time, by any means, or in any manner, to pursue, hunt, take,
capture, kill'' migratory birds or attempt to do the same. 16 U.S.C.
703(a). Solicitor's
[[Page 24574]]
Opinion M-37050 and the January 7 rule argued that the prohibited terms
listed in section 2 all refer to conduct directed at migratory birds,
and that the broad preceding language, ``by any means, or in any
manner,'' simply covers all potential methods and means of performing
actions directed at migratory birds and does not extend coverage to
actions that incidentally take or kill migratory birds.
As noted above, on August 11, 2020, a court rejected the
interpretation set forth in Solicitor's Opinion M-37050 as contrary to
the MBTA and vacated that opinion. Natural Res. Def. Council v. U.S.
Dep't of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020) (``NRDC '').
In late January 2021, two new lawsuits were filed that challenge the
January 7 rule. Nat'l Audubon Soc'y v. U.S. Fish & Wildlife Serv.,
1:21-cv-00448 (S.D.N.Y. filed Jan. 19, 2021); State of New York v. U.S.
Dep't of the Interior, 1:21-cv-00452 (S.D.N.Y. filed Jan. 19, 2021). At
the time the January 7 rule was published, the United States had filed
a notice of appeal of the NRDC decision in the U.S. Court of Appeals
for the Second Circuit. Since that time, the United States filed a
stipulation to dismiss that appeal on February 25, 2021, and the Deputy
Solicitor permanently withdrew M-37050 on March 8, 2021.
The District Court's decision in NRDC expressly rejected the basis
for the January 7 rule's conclusion that the statute does not prohibit
incidental take. In particular, the court reasoned that the plain
language of the MBTA's prohibition on killing protected migratory bird
species ``at any time, by any means, and in any manner'' shows that the
MBTA prohibits incidental killing. See 478 F. Supp. 3d at 481. Thus,
the statute is not limited to actions directed at migratory birds.
After closely examining the court's holding, we are persuaded that it
advances the better reading of the statute, including that the better
reading of ``kill'' is that it also prohibits incidental killing.
The interpretation contained in the January 7 rule relies heavily
on United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015)
(CITGO). The Fifth Circuit is the only Circuit Court of Appeals to
expressly state that the MBTA does not prohibit incidental take. In
CITGO, the Fifth Circuit held that the term ``take'' in the MBTA does
not include incidental taking because ``take'' at the time the MBTA was
enacted in 1918 referred in common law to ``[reducing] animals, by
killing or capturing, to human control'' and accordingly could not
apply to accidental or incidental take. Id. at 489 (following Babbitt
v. Sweet Home Chapter Cmtys. for a Great Or., 515 U.S. 687, 717 (1995)
(Scalia J., dissenting) (Sweet Home)). While we do not agree with the
CITGO court's interpretation of the term ``take'' under the MBTA, we
further note that CITGO does not provide legal precedent for construing
``kill'' narrowly. The CITGO court's analysis is limited by its terms
to addressing the meaning of the term ``take'' under the MBTA; thus,
any analysis of the meaning of the term ``kill'' was not part of the
court's holding. As discussed below, however, we also disagree with the
CITGO court's analysis of the term ``kill.''
Although the CITGO court's holding was limited to interpreting
``take,'' the court opined in dicta that the term ``kill'' is limited
to intentional acts aimed at migratory birds in the same manner as
``take.'' See 801 F.3d at 489 n.10. However, the court based this
conclusion on two questionable premises.
First, the court stated that ``kill'' has little if any independent
meaning outside of the surrounding prohibitory terms ``pursue,''
``hunt,'' ``capture,'' and ``take,'' analogizing the list of prohibited
acts to those of two other environmental statutes--the Endangered
Species Act (ESA) (16 U.S.C. 1531 et seq.) and the Migratory Bird
Conservation Act (16 U.S.C. 715 et seq.). See id. The obvious problem
with this argument is that it effectively reads the term ``kill'' out
of the statute; in other words, the CITGO court's reasoning renders
``kill'' superfluous to the other terms mentioned, thus violating the
rule against surplusage. See, e.g., Corley v. United States, 556 U.S.
303, 314 (2009).
Second, employing the noscitur a sociis canon of statutory
construction (which provides that the meaning of an ambiguous word
should be determined by considering its context within the words it is
associated with), the Fifth Circuit argued that because the surrounding
terms apply to ``deliberate acts that effect bird deaths,'' then
``kill'' must also. See 801 F.3d at 489 n.10. The January 7 rule also
relied heavily on this canon to argue that both ``take'' and ``kill''
must be read as deliberate acts in concert with the other referenced
terms. Upon closer inspection though, the only terms that clearly and
unambiguously refer to deliberate acts are ``hunt'' and ``pursue.''
Both the CITGO court and the January 7 final rule erroneously
determined that ``capture'' can also only be interpreted as a
deliberate act. This is not so. There are many examples of
unintentional or incidental capture, such as incidental capture in
traps intended for animals other than birds or in netting designed to
prevent swallows nesting under bridges. Thus, the CITGO court's primary
argument that ``kill'' only applies to ``deliberate actions'' rests on
the fact that just two of the five prohibited actions unambiguously
describe deliberate acts. The fact that most of the prohibited terms
can be read to encompass actions that are not deliberate in nature is a
strong indication that Congress did not intend those terms to narrowly
apply only to direct actions.
The NRDC court similarly rejected the January 7 rule's
interpretation of the term ``kill'' and its meaning within the context
of the list of actions prohibited by the MBTA. The court noted the
broad, expansive language of section 2 prohibiting hunting, pursuit,
capture, taking, and killing of migratory birds ``by any means or in
any manner.'' 478 F. Supp. 3d at 482. The court reasoned that the plain
meaning of this language can only be construed to mean that activities
that result in the death of a migratory bird are a violation
``irrespective of whether those activities are specifically directed at
wildlife.'' Id. The court also noted that the Sweet Home decision
relied upon by the CITGO court and the January 7 rule actually counsels
in favor of a broad reading of the term ``kill,'' even assuming Justice
Scalia accurately defined the term ``take'' in his dissent. The Sweet
Home case dealt specifically with the definition of ``take'' under the
ESA, which included the terms ``harm'' and ``kill.'' The majority in
Sweet Home was critical of the consequences of limiting liability under
the ESA to ``affirmative conduct intentionally directed against a
particular animal or animals,'' reasoning that knowledge of the
consequences of an act are sufficient to infer liability, including
typical incidental take scenarios. Id. at 481-82.
The NRDC court went on to criticize the use of the noscitur a
sociis canon in Solicitor's Opinion M-37050 (a use repeated in the
January 7 rule). The court reasoned that the term ``kill'' is broad and
can apply to both intentional, unintentional, and incidental conduct.
The court faulted the Solicitor's narrow view of the term and disagreed
that the surrounding terms required that narrow reading. To the
contrary, the court found the term ``kill'' to be broad and not at all
ambiguous, pointedly noting that proper use of the noscitur canon is
confined to interpreting ambiguous statutory language. Moreover, use of
the noscitur canon deprives ``kill'' of any independent meaning, which
runs headlong into the canon against surplusage as noted above. The
court did not agree that an example provided
[[Page 24575]]
by the government demonstrated that ``kill'' had independent meaning
from ``take'' under the interpretation espoused by Solicitor's Opinion
M-37050. By analogy, the court referenced the Supreme Court's rejection
of the dissent's use of the noscitur canon in Sweet Home, which
similarly gave the term ``harm'' the same essential function as the
surrounding terms used in the definition of ``take'' under the ESA,
denying it independent meaning. See id. at 484.
In sum, after further review of the CITGO and NRDC decisions, along
with the language of the statute, we now conclude that the
interpretation of the MBTA set forth in the January 7 rule and
Solicitor's Opinion M-37050, which provided the basis for that
interpretation, is not the construction that best accords with the
text, purposes, and history of the MBTA. It simply cannot be squared
with the NRDC court's holding that the MBTA's plain language
encompasses the incidental killing of migratory birds. Even if the NRDC
court's plain-language analysis were incorrect, the operative language
of the MBTA is at minimum ambiguous, thus USFWS has discretion to
implement that language in a manner consistent with the conservation
purposes of the statute and its underlying Conventions. To the extent
that the primary policy justifications for the January 7 rule were
resolving uncertainty and increasing transparency through rulemaking,
we do not consider these concerns to outweigh the legal infirmities of
the January 7 rule or the conservation purposes of the statute and its
underlying Conventions. Interpreting the statute to exclude incidental
take is not the reading that best advances these purposes, which is
underscored by the following additional reasons for revoking the
current regulation.
First, the January 7 rule is undermined by the 2002 legislation
authorizing military-readiness activities that incidentally take or
kill migratory birds. In that legislation, Congress temporarily
exempted ``incidental taking'' caused by military-readiness activities
from the prohibitions of the MBTA; required the Secretary of Defense to
identify, minimize, and mitigate the adverse effect of military-
readiness activities on migratory birds; and directed USFWS to issue
regulations under the MBTA creating a permanent exemption for military-
readiness activities. Bob Stump National Defense Authorization Act for
Fiscal Year 2003, Public Law 107-314, Div. A, Title III, section 315
(2002), 116 Stat. 2509 (Stump Act). This legislation was enacted in
response to a court ruling that had enjoined military training that
incidentally killed migratory birds. Ctr. for Biological Diversity v.
Pirie, 191 F. Supp. 2d 161 and 201 F. Supp. 2d 113 (D.D.C. 2002),
vacated on other grounds sub nom. Ctr. for Biological Diversity v.
England, 2003 U.S. App. Lexis 1110 (D.C. Cir. Jan. 23, 2003). Notably,
Congress did not amend the MBTA to define the terms ``take'' or
``kill.'' Instead, Congress itself uses the term ``incidental take''
and provides that the MBTA ``shall not apply'' to such take by the
Armed Forces during ``military-readiness activities.'' Moreover,
Congress limited the exemption only to military-readiness activities to
training and operations related to combat and the testing of equipment
for combat use; it expressly excluded routine military-support
functions and the ``operation of industrial activities'' from the
exemption afforded by the 2002 legislation, leaving such non-combat-
related activities fully subject to the prohibitions of the Act. Even
then, the military-readiness incidental take carve-out was only
temporarily effectuated through the statute itself. Congress further
directed the Department of the Interior (DOI or the Department) ``to
prescribe regulations to exempt the Armed Forces for the incidental
taking of migratory birds during military readiness activities.'' This
would be an odd manner in which to proceed to address the issue raised
by the Pirie case if Congress' governing understanding at the time was
that incidental take of any kind was not covered by the Act (we
acknowledge that Congress's understanding when enacting legislation in
2002 is relevant to, but not dispositive of, Congress's intent when it
enacted the MBTA in 1918). Congress simply could have amended the MBTA
to clarify that incidental take is not prohibited by the statute or, at
the least, that take incidental to military-readiness activities is not
prohibited. Instead, Congress limited its amendment to exempting
incidental take only by military-readiness activities, expressly
excluded other military activities from the exemption, and further
directed DOI to issue regulations delineating the scope of the
military-readiness carve-out from the prohibitions of the Act. All of
these factors indicate that Congress understood that the MBTA's take
and kill prohibitions included what Congress itself termed ``incidental
take.''
In arguing that Congress's authorization of incidental take during
military-readiness activities did not authorize enforcement of
incidental take in other contexts, the January 7 rule cites the CITGO
court's conclusion that 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. It is true that the Stump Act
clearly did not, by its terms, authorize enforcement of incidental take
in other contexts. It clearly could not do anything of the sort, based
on its narrow application to military-readiness activities. Rather, the
logical explanation is that Congress considered that the MBTA already
prohibited incidental take (particularly given USFWS's enforcement of
incidental take violations over the prior three decades) and there was
no comprehensive regulatory mechanism available to authorize that take.
Thus, it was necessary to temporarily exempt incidental take pursuant
to military-readiness activities to address the Pirie case and direct
USFWS to create a permanent exemption. This conclusion is supported by
the fact that Congress specifically stated in the Stump Act that the
exemption did not apply to certain military activities that do not meet
the definition of military readiness, including operation of industrial
activities and routine military-support functions.
On closer inspection, the CITGO court's analysis of the purposes
behind enactment of the military-readiness exemption is circular.
Assuming the military-readiness exemption is necessary because the MBTA
otherwise prohibits incidental take only represents an implicit and
huge expansion of coverage under the MBTA if it is assumed that the
statute did not already prohibit incidental take up to that point. But
Congress would have had no need to enact the exemption if the MBTA did
not--both on its terms and in Congress's understanding--prohibit
incidental take. The adoption of a provision to exempt incidental take
in one specific instance is merely a narrowly tailored exception to the
general rule, and provides clear evidence of what Congress understood
the MBTA to prohibit.
Second, further consideration of concerns expressed by one of our
treaty partners counsels in favor of revoking the January 7 rule. The
MBTA implements four bilateral migratory bird Conventions with Canada,
Mexico, Russia, and Japan. See 16 U.S.C. 703-705, 712. The Government
of Canada communicated its concerns with the January 7 rule both during
and after the rulemaking process, including providing comments on the
environmental impact statement (EIS) associated with the rule.
After the public notice and comment period had closed, Canada's
Minister of
[[Page 24576]]
Environment and Climate Change summarized the Government of Canada's
concerns in a public statement issued on December 18, 2020 (https://www.canada.ca/en/environment-climate-change/news/2020/12/minister-wilkinson-expresses-concern-over-proposed-regulatory-changes-to-the-united-states-migratory-bird-treaty-act.html). Minister Wilkinson
voiced the Government of Canada's concern regarding ``the potential
negative impacts to our shared migratory bird species'' of allowing the
incidental take of migratory birds under the MBTA rule and ``the lack
of quantitative analysis to inform the decision.'' He noted that the
``Government of Canada's interpretation of the proposed changes . . .
is that they are not consistent with the objectives of the Convention
for the Protection of Migratory Birds in the United States and
Canada.'' Additionally, in its public comments on the draft EIS for the
MBTA rule, Canada stated that it believes the rule ``is inconsistent
with previous understandings between Canada and the United States
(U.S.), and is inconsistent with the long-standing protections that
have been afforded to non-targeted birds under the Convention for the
Protection of Migratory Birds in the United States and Canada . . . as
agreed upon by Canada and the U.S. through Article I. The removal of
such protections will result in further unmitigated risks to vulnerable
bird populations protected under the Convention.'' After further
consideration, we have similar concerns to those of our treaty partner,
Canada.
The protections for ``non-targeted birds'' noted by the Canadian
Minister are part and parcel of the Canada Convention, as 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, which protects not only game birds hunted and trapped
for sport and food, but also nongame birds and insectivorous birds. For
instance, the preamble to the Convention declares ``saving from
indiscriminate slaughter and of insuring the preservation of such
migratory birds as are either useful to man or are harmless'' as its
very purpose and declares that ``many of these species are . . . in
danger of extermination through lack of adequate protection during the
nesting season or while on their way to and from their breeding
grounds.'' Convention between the United States and Great Britain (on
behalf of Canada) for the Protection of Migratory Birds, 39 Stat. 1702
(Aug. 16, 1916). Thus, whether one argues that the language of section
2 of the MBTA plainly prohibits incidental killing of migratory birds
or is ambiguous in that regard, an interpretation that excludes
incidental killing is difficult to square with the express conservation
purposes of the Canada Convention. Moreover, until recently there had
been a longstanding ``mutually held interpretation'' between the two
treaty partners that regulating incidental take is consistent with the
underlying Convention, as stated in an exchange of Diplomatic Notes in
2008. While Canada expressed its position before the final rule on
January 7, upon review, we now have determined that the concerns raised
by the United States' treaty partner counsel in favor of revocation of
the rule.
In addition to the Canada Convention, the January 7 rule may also
be inconsistent with the migratory bird conventions with Mexico, Japan,
and Russia. The Japan and Russia Conventions both broadly call for the
parties to prevent damage to birds from pollution. See 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, Mar. 4, 1972, 25 U.S.T.
3329 (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, Nov. 19, 1976,
29 U.S.T. 4647 (Russia Convention). The Protocols amending the Canada
and Mexico Conventions contain similar language calling for the parties
to seek means to prevent damage to birds and their environment from
pollution. 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, Dec. 14, 1995, S. Treaty Doc. No. 104-28, T.I.A.S.
12721; Protocol Between the Government of the United States of America
and the Government of the United Mexican States Amending the Convention
for the Protection of Migratory Birds and Game Mammals, May 5, 1997, S.
Treaty Doc. No. 105-26.
Some of the relevant provisions include Article IV of the Protocol
with Canada, which states that each party shall use its authority to
``take appropriate measures to preserve and enhance the environment of
migratory birds,'' and in particular shall ``seek means to prevent
damage to [migratory] birds and their environments, including damage
resulting from pollution''; Article I of the Mexico Convention, which
discusses protecting migratory birds by ``means of adequate methods[. .
.]''; Article VI(a) of the Japan Convention, which provides that
parties shall ``[s]eek means to prevent damage to such birds and their
environment, including, especially, damage resulting from pollution of
the seas''; and Articles IV(1) and 2(c) of the Russia Convention, which
require parties to ``undertake measures necessary to protect and
enhance the environment of migratory birds and to prevent and abate the
pollution or detrimental alteration of that environment,'' and, in
certain special areas, undertake, to the maximum extent possible,
``measures necessary to protect the ecosystems in those special areas .
. . against pollution, detrimental alteration and other environmental
degradation.''
The January 7 rule eliminates a source of liability for pollution
that incidentally takes and kills migratory birds, a position that is
difficult to square with the mutually agreed-upon treaty provisions
agreeing to prevent damage to birds from pollution. The January 7 rule
does not directly affect natural resource damage assessments conducted
under the Comprehensive Environmental Response Compensation and
Liability Act, the Oil Pollution Act, and the Clean Water Act to
determine compensation to the public for lost natural resources and
their services from accidents that have environmental impacts, such as
oil spills. However, for oils spills such as the BP Deepwater Horizon
Gulf oil spill and the Exxon Valdez oil spill in Alaska, significant
penalties were levied in addition to those calculated under natural
resource damage assessments based on incidental-take liability under
the MBTA. Those fines constituted a large proportion of the total
criminal fines and civil penalties associated with historical
enforcement of incidental take violations. As noted in the EIS, the
January 7 rule eliminates the Federal Government's ability to levy
similar fines in the future, thereby reducing the deterrent effect of
the MBTA and reducing funding for the North American Wetland
Conservation Fund for the protection and restoration of wetland habitat
for migratory birds.
In sum, the issues raised by the Government of Canada raise
significant concerns regarding whether the January 7 rule is consistent
with the Canada Convention, and questions also remain regarding that
rule's consistency with the other migratory bird Conventions. We note
as well that the primary policy justifications for the January 7 rule
were resolving uncertainty and increasing
[[Page 24577]]
transparency through rulemaking. These concerns, however, do not
outweigh the legal infirmities of the January 7 rule or the
conservation objectives described above. On these bases, in addition to
the legal concerns raised above, we are proposing to revoke the MBTA
rule.
Public Comments
We solicit public comments on the following topics:
1. Whether we should revoke the rule, as proposed here, and why or
why not;
2. The costs or benefits of revoking the rule;
3. The costs or benefits of leaving the rule in place; and
4. Any reliance interests that might be affected by revoking the
rule, or not revoking the rule.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. If you provided
comments in response to the February 9, 2021, rule (86 FR 8715) to
extend the effective date of the January 7 rule, you do not need to
resubmit those comments in response to this proposed rule. The USFWS
will consider all comments pertaining to the January 7 rule that were
submitted in response to the February 9, 2021, rule in determining
whether to revoke the January 7 rule. Comments must be submitted to
https://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date
specified in DATES. We will not consider mailed comments that are not
postmarked by the date specified in DATES.
We will post your entire comment--including your personal
identifying information--on https://www.regulations.gov. If you provide
personal identifying information in your comment, you may request at
the top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so.
Comments and materials we receive will be available for public
inspection on https://www.regulations.gov.
Required Determinations
National Environmental Policy Act
Because we are proposing to revoke the January 7 MBTA rule, we will
rely on the final EIS developed to analyze that rule in determining the
environmental impacts of revoking it: ``Final Environmental Impact
Statement; Regulations Governing Take of Migratory Birds,'' available
on https://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. The
alternatives analyzed in that EIS cover the effects of interpreting the
MBTA to both include and exclude incidental take. If we finalize this
proposed rule, we will publish an amended Record of Decision that
explains our decision to instead select the environmentally preferable
alternative, or Alternative B, in the final EIS. If we determine that
any additional, relevant impacts on the human environment have occurred
subsequent to our existing Record of Decision, we will describe those
impacts in the amended Record of Decision.
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 the January 7 rule that this proposed rule would
revoke under the criteria in Executive Order 13175 and under the
Department's Tribal consultation policy and determined that the January
7 rule may have a substantial direct effect on federally recognized
Indian Tribes. We received requests from nine federally recognized
Tribes and two Tribal councils for government-to-government
consultation on that rule. Accordingly, the Service initiated
government to government consultation via letters signed by Regional
Directors and completed the consultations before issuing the January 7
final rule.
During these consultations, there was unanimous opposition from
Tribes to the re-interpretation of the MBTA to exclude coverage of
incidental take under the January 7 rule. Thus, this proposal to revoke
the January 7 rule is consistent with the requests of federally
recognized Tribes during those consultations.
Energy Supply Distribution
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 the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
as a significant energy action. Therefore, no Statement of Energy
Effects is required.
Endangered Species Act
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 proposing the revocation of the January 7
rule regarding the take of migratory birds will have no effect on ESA-
listed species within the meaning of ESA Section 7(a)(2).
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 proposed rule is economically 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 proposed rule in a manner
consistent with these requirements.
This proposed regulation would revoke the January 7 MBTA rule. The
legal effect of this proposal would be to remove from the Code of
Federal Regulations (CFR) the interpretation that incidental take of
migratory birds is not prohibited under the MBTA, based on
[[Page 24578]]
the rationale explained in the preamble. As explained in the preamble,
the Solicitor's Opinion (M-37050) that formed the basis for the January
7 rule was overturned in court and has since been withdrawn by the
Solicitor's Office. By removing Sec. 10.14 from subpart B of title 50
CFR, USFWS would revert to implementing the statute without an
interpretative regulation governing incidental take, consistent with
judicial precedent. This would mean that incidental take can violate
the MBTA to the extent consistent with the statute and judicial
precedent. Enforcement discretion would be applied, subject to certain
legal constraints.
The Service conducted a regulatory impact analysis of the January 7
rule, which can be viewed online at https://www.regulations.gov in
Docket No. FWS-HQ-MB-2018-0090. In that analysis, we analyzed the
effects of an alternative (Alternative B) where the Service would
promulgate a regulation that interprets the MBTA to prohibit incidental
take consistent with the Department's longstanding prior
interpretation. By reverting to this interpretation, the Service would
view the incidental take of migratory birds as a potential violation of
the MBTA, consistent with judicial precedent. The Regulatory Impact
Analysis for this proposed rule can be viewed online at https://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. The primary
benefit of this rule results from decreased incidental take. While we
are unable to quantify the benefits, we expect this rule to result in
increased ecosystem services and benefits to businesses that rely on
these services. Further, benefits will accrue from increased bird
watching opportunities. The primary cost of this rule is the compliance
cost incurred by industry, which is also not quantifiable. Firms are
more likely to implement best practice measures to avoid potential
fines. Additionally, potential fines generate transfers from industry
to the government. Using a 10-year time horizon (2022-2031), the
present value of these transfers is estimated to be $73.6 million at a
7-percent discount rate and $67.1 million at a 3-percent discount rate.
This would equate to an annualized value of $15.6 million at a 7-
percent discount rate and $15.3 million at a 3-percent discount rate.
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). We
prepared an Initial Regulatory Flexibility Analysis, briefly summarized
below, to accompany this rule that can be viewed online at https://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090.
The proposed rule may affect industries that typically incidentally
take substantial numbers of birds and with which the Service has worked
to reduce those effects (Table 1). 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. It is important to
note that many small businesses would not be affected if we ultimately
promulgate this proposed rule. Only those businesses that reduced best
management practices that avoid or minimize incidental take of
migratory birds as a result of the issuance of M-37050 in January 2017
and the January 7, 2021, rule would incur costs. If we promulgate this
proposed rule, those businesses would presumably reinstate those best
management practices. We are requesting public comment on the number of
businesses that reduced best management practices and the resulting
cost savings as a direct result of issuance of M-37050 and the January
7 rule.
Table 1--Distribution of Businesses Within Affected Industries
----------------------------------------------------------------------------------------------------------------
Small business
Number of size standard Number of small
NAICS industry description NAICS code businesses (number of businesses
employees)
----------------------------------------------------------------------------------------------------------------
Finfish Fishing........................ 114111 1,210 \a\ 20 1,185
Crude Petroleum and Natural Gas 211111 6,878 1,250 6,868
Extraction............................
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 517312 15,845 1,500 15,831
(except Satellite)....................
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau, 2012 County Business Patterns.
\a\ Note: The SBA 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 currently have a permitting system
dedicated to authorizing incidental take of migratory birds, the
Service does not have specific information regarding how many
businesses in each sector implement measures to reduce incidental take
of birds. Not all businesses in each sector incidentally take birds. In
addition, a
[[Page 24579]]
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 Opinion M-37050 or issuance of the January 7 rule. We did
not receive sufficient information on that issue during the public
comment periods associated with the January 7 rule and associated NEPA
analysis or the February 9 rule extending the effective date of the
January 7 rule. We reiterate our request for public comment on these
issues for this proposed rule.
If this proposed rulemaking results in revoking the January 7 rule,
any subsequent incidental take of migratory birds could violate the
MBTA, consistent with the statute and judicial precedent. Some small
entities would incur costs if they reduced best management practices
after M-Opinion 37050 was issued in January 2017 or after promulgation
of the January 7, 2021, rule and would need to subsequently reinstate
those practices if the January 7 rule is revoked, assuming they did not
already reinstate such practices after vacatur of M-Opinion 37050.
Summary
Table 2 identifies examples of bird mitigation measures, their
associated costs, and why available data are not extrapolated to the
entire industry sector or small businesses. We are requesting public
comment so we can extrapolate data, if appropriate, to each industry
sector and any affected small businesses. Table 3 summarizes likely
economic effects of the proposed rule on the business sectors
identified in Table 1. In many cases, 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. We are requesting public comment regarding this estimate. As
shown by the limited data in Table 3, we are also requesting public
comment for the finfish fishing and solar power electric generation
industries to determine significance. The likely economic effects
summarized in Table 3 are based on the RFA analysis for the January 7
rule. We solicited public comments on these issues during the public
comment periods associated with the January 7 rule and associated NEPA
analysis and the February 9 rule extending the effective date of the
January 7 rule. We reiterate our request for public comment on these
data for this proposed rule.
Table 2--Best Management Practices Costs by Industry \1\
----------------------------------------------------------------------------------------------------------------
Why data are not
Example of bird extrapolated to entire
NAICS industry mitigation measure Estimated cost industry or small
businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing (NAICS 11411).... Changes in design of Costs are per No data
longline fishing hooks, vessel per year. available on fleet
changes in offal $1,400 for size.
management practices, thawed blue-dyed bait.. No data
use of flagging or $150 for available on how many
streamers on fishing strategic offal measures are employed
lines. discards.. on each vessel.
$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 net ponds.. acre due to sagging.
wastewater systems.. Most netted Size
pits are \1/4\ to \1/2\ distribution of oil
acre.. pits 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
loop drilling fluid pits is unknown.
systems, but may be a Average number
net cost savings in of pits per business is
arid areas with water unknown.
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- No public comments New projects can vary
(NAICS 221114). construction bird received on January 7 from 100 to 5,000 acres
surveys. rule to estimate 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
locations to minimize adjustment of turbine adjustment of turbine
bird mortality during construction locations. construction locations.
operations. $100,000 to High
Pre- and post- $500,000 per facility variability in survey
construction bird per year for pre- costs and high
surveys.. construction site use variability in need to
Retrofit power and post-construction conduct surveys.
poles to minimize eagle bird mortality surveys.. High
mortality.. $7,500 per variability in cost and
power pole with high need to retrofit power
variability of cost. poles.
Annual
nationwide labor cost
to implement wind
energy guidelines:
$17.6M..
Annual
nationwide non-labor
cost to implement wind
energy guidelines:
$36.9M..
Electric Bulk Power Transmission Retrofit power poles to $7,500 per power pole High variability in cost
(NAICS 221121). minimize eagle mortality. with high variability and need to retrofit
of cost. power poles.
Electric Power Distribution Retrofit power poles to $7,500 per power pole High variability in cost
(NAICS 221122). minimize eagle mortality. with high variability and need to retrofit
of cost. power poles.
[[Page 24580]]
Wireless Tele-communications Extinguish non- Industry saves Data not available for
Carriers (except Satellite) flashing lights on hundreds of dollars per number of operators who
(NAICS 517312). towers taller than 350'. year in electricity have implemented these
Retrofit towers costs by extinguishing practices.
shorter than 350' with 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 3--Summary of Economic Effects on Small Businesses
----------------------------------------------------------------------------------------------------------------
Potential bird
NAICS industry description (NAICS mitigation measures Economic effects on
code) under this proposed small businesses Rationale
rule
----------------------------------------------------------------------------------------------------------------
Finfish Fishing (11411)............ Changes in design of Likely minimal effects Seabirds are specifically
longline fishing excluded from the
hooks, changes in definition of bycatch
offal management under the Magnuson-Stevens
practices, and Fishery Conservation and
flagging/streamers on Management Act and,
fishing lines. therefore, seabirds not
listed under the ESA may
not be covered by any
mitigation measures. The
impact of this on small
entities is unknown.
Crude Petroleum and Natural Gas Using closed waste- Likely minimal effects Thirteen States have
Extraction (211111). water systems or regulations governing the
netting of oil pits treatment of oil pits such
and ponds. 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 proposed
rule is unlikely to affect
a significant number of
small entities.
Drilling Oil and Gas Wells (213111) Using closed waste- Likely minimal effects Thirteen States have
water systems or regulations governing the
netting of oil pits treatment of oil pits,
and ponds. 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 proposed
rule is unlikely to affect
a significant number of
small entities.
Solar Electric Power Generation Monitoring bird use Likely minimal effects Bird monitoring in some
(221114). and mortality at States may continue to be
facilities, limited required under State
use of deterrent policies. The number of
systems such as States and the policy
streamers and details are unknown.
reflectors.
Wind Electric Power Generation Following Wind Energy Likely minimal effects Following the Wind Energy
(221115). Guidelines, which Guidelines has become
involve conducting industry best practice and
risk assessments for would likely continue. In
siting facilities. addition, the industry
uses these guidelines to
aid in reducing effects on
other regulated species
like eagles and threatened
and endangered bats.
Electric Bulk Power Transmission Following Avian Power Likely minimal effects Industry would likely
(221121). Line Interaction continue to use APLIC
Committee (APLIC) guidelines to reduce
guidelines. outages caused by birds
and to reduce the take of
eagles, regulated under
the Bald and Golden Eagle
Protection Act.
Electric Power Distribution Following Avian Power Likely minimal effects Industry would likely
(221122). Line Interaction continue to use APLIC
Committee (APLIC) guidelines to reduce
guidelines. outages caused by birds
and to reduce the take of
eagles, regulated under
the Bald and Golden Eagle
Protection Act.
Wireless Tele-communications Installation of Likely minimal effects Industry will likely
Carriers (except Satellite) flashing obstruction continue to install
(517312). lighting. flashing obstruction
lighting to save energy
costs and to comply with
recent Federal Aviation
Administration Lighting
Circular and Federal
Communication Commission
regulations.
----------------------------------------------------------------------------------------------------------------
While the Service concludes that certification is likely
appropriate in this case, and consistent with our analysis of economic
impacts under the January 7 rule, we have developed an IRFA out of an
abundance of caution to ensure that economic impacts on small entities
are fully accounted for in this rulemaking process.
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 proposed rule would not ``significantly or uniquely''
affect small government activities. A small government agency plan is
not required.
b. This proposed rule would not produce a Federal mandate on local
or State government or private entities. Therefore, this proposed
action is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act.
Takings
In accordance with E.O. 12630, this proposed 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 proposed rule will not create substantial direct effects or
compliance costs on State and local governments or preempt State law.
Some States may choose not to enact changes in their management efforts
and regulatory processes and staffing to develop and or implement State
laws governing birds, likely accruing benefits for States. Therefore,
this proposed 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 determine that this proposed rule
will not unduly burden the judicial system
[[Page 24581]]
and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
This proposed 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.
List of Subjects in 50 CFR Part 10
Exports, Fish, Imports, Law enforcement, Plants, Transportation,
Wildlife.
Proposed Regulation Removal
For the reasons described in the preamble, we hereby propose to
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-668d, 703-712, 742a-742j-l, 1361-
1384, 1401-1407, 1531-1543, 3371-3378; 18 U.S.C. 42; 19 U.S.C. 1202.
0
2. Remove Sec. 10.14.
Shannon A. Estenoz,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks,
Exercising the Delegated Authority of the Assistant Secretary for Fish
and Wildlife and Parks.
[FR Doc. 2021-09700 Filed 5-6-21; 8:45 am]
BILLING CODE 4333-15-P
