FederalRegister_MigratoryBird_Take_20211004

54642 Federal Register /Vol. 86, No. 189/Monday, October 4, 2021/Rules and Regulations
■3. Revise §801.52 to read as follows:
§801.52 Internal personnel rules and
practices of the NTSB.
Pursuant to 5 U.S.C. 552(b)(2), the
following records are exempt from
disclosure under FOIA: Records relating
solely to internal personnel rules and
practices, including memoranda
pertaining to personnel matters such as
staffing policies, and procedures for the
hiring, training, promotion, demotion,
or discharge of employees, and
management plans, records, or
proposals relating to labor-management
relations.
Jennifer Homendy,
Chair.
[FR Doc. 2021–21517 Filed 10–1–21; 8:45 am]
BILLING CODE 7533–01–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 10
[Docket No. FWS–HQ–MB–2018–0090;
FF09M22000–212–FXMB1231099BPP0]
RIN 1018–BD76
Regulations Governing Take of
Migratory Birds; Revocation of
Provisions
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Final rule.
SUMMARY: On January 7, 2021, we, the
U.S. Fish and Wildlife Service (we, the
Service, or USFWS), published a final
rule (January 7 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 now revoke that rule for the reasons
set forth below. The immediate effect of
this final rule is to return to
implementing the MBTA as prohibiting
incidental take and applying
enforcement discretion, consistent with
judicial precedent and longstanding
agency practice prior to 2017.
DATES: This rule is effective December 3,
2021.
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
(also referred to as the Jorjani Opinion),
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 the
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 was necessary.
After further review, we decided not
to extend the effective date of the
January 7 rule beyond March 8. We
acknowledged that the January 7 rule
would 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 determined that the most transparent
and efficient path forward was instead
to immediately propose to revoke the
January 7 rule. The proposed rule
provided the public with notice of our
intent to revoke the January 7 rule,
subject to our final decision after
consideration of public comments.
We have undertaken further review of
the January 7 rule and considered
public comments on our proposed
revocation rule and determine that the
January 7 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 on
August 11, 2020 that expressly rejected
the rationale offered in the rule. The
January 7 rule’s reading of the MBTA
also raises serious concerns with
Canada, a United States’ treaty partner,
and for the migratory bird resources
protected by the MBTA and underlying
treaties. Accordingly, we revoke the
January 7 rule and remove the
regulation codifying the interpretation
set forth in the January 7 rule at 50 CFR
10.14.
At this time, we have not proposed
replacement language for the Code of
Federal Regulations. This rulemaking
simply removes the current regulatory
language. A Director’s Order clarifying
our current enforcement position was
issued at the time of this final rule’s
publication and will come into effect on
the effective date of this final rule (see
DATES). We will introduce new policies
in the future, including a proposed
regulation codifying an interpretation of
the MBTA that prohibits incidental take
and potentially a regulatory framework
for the issuance of permits to authorize
incidental take. Concurrent with this
final rule, we have also published an
advance notice of proposed rulemaking
requesting public input on potential
alternatives for authorizing incidental
take of migratory birds and a Director’s
Order clarifying our current
enforcement position. These new
policies and regulatory actions will fully
implement the new National
Environmental Policy Act (NEPA)
Record of Decision (ROD) associated
with this revocation rule, which is
available at https://www.fws.gov/
regulations/mbta/resources.
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 several decades
of past agency practice and interpreted
the scope of the MBTA to exclude any
prohibition on the 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
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
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54643 Federal Register /Vol. 86, No. 189/Monday, October 4, 2021/Rules and Regulations
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 as set
forth in the January 7 rule. After closely
examining the court’s holding, we are
persuaded that it advances the better
reading of the statute, including that the
most natural 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.
Moreover, as discussed below and
even though it was dicta, 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
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
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54644 Federal Register /Vol. 86, No. 189/Monday, October 4, 2021/Rules and Regulations
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.
The CITGO court, M–37050, and the
January 7 rule also cited potential
constitutional concerns in rejecting an
interpretation of the MBTA that
prohibits incidental take—specifically
that this interpretation results in
implementing the MBTA in a vague and
overbroad manner thus violating the
constitutional right to due process.
Although the NRDC court did not
address these concerns because it found
the language of the MBTA unambiguous
in the context of its application to
incidental take, these concerns also do
not counsel in favor of rejecting that
interpretation even if the relevant
language is considered ambiguous. The
constitutional concerns cited in the
January 7 rule can be addressed simply
by noting that the Act’s reach within the
context of incidental take is limited by
applying the standard legal tools of
proximate causation and
foreseeability—as explained by the
Tenth Circuit in United States v. Apollo
Energies, 611 F.3d 679 (10th Cir. 2010)
and in M–37041—and by adopting
policies and regulations that eliminate
potential prosecutorial overreach and
absurd results. Upon revocation of this
rule, we issued a Director’s Order
clarifying our current enforcement
position and will consider developing a
regulatory authorization framework, as
explained below. These policies will
eliminate any potential constitutional
concerns by providing the public with
adequate notice of the scope of potential
liability under the MBTA and how any
potential violations may be avoided or
authorized.
In sum, after further review of the
January 7 rule and 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 that avoids any
potential constitutional concerns.
Reference to case law in general or
legislative history can be interpreted to
bolster either interpretation as
demonstrated by the relevant analysis in
the January 7 rule versus that of the
initial Solicitor’s Opinion, M–37041,
thus is of limited assistance if the
relevant language is indeed ambiguous.
In any case, the Service certainly has
discretion to revoke the January 7 rule
given the legal infirmities raised by the
NRDC court and the rule’s reliance on
the CITGO decision.
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 or
provides the most natural reading of
section 2, 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, i.e.,
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. 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 incidental-take 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 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
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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
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 published 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
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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
oil 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 the
Federal Government’s ability to mitigate
some of the harm by directing these
fines to the North American Wetlands
Conservation Act 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
transparency through rulemaking. These
concerns, however, do not outweigh the
legal infirmities of the January 7 rule or
the conservation objectives described
above. In any case, the Service has
issued a Director’s Order concurrently
with this rule that explains in more
detail our enforcement priorities
regarding incidental take of migratory
birds and published an advance notice
of proposed rulemaking to seek public
input on an authorization framework.
Both actions will provide the public
with more clarity and transparency
regarding compliance with the MBTA.
On these bases, in addition to the legal
concerns raised above, we revoke the
January 7 MBTA rule.
Public Comments
On May 7, 2021, the Service
published in the Federal Register (86
FR 24573) a proposed rule seeking
public comment on whether the Service
should revoke the final rule published
on January 7, 2020, that defined the
scope of the MBTA as it applies to
conduct resulting in the injury or death
of migratory birds protected by the Act.
We solicited public comments on the
proposed rule for 30 days, ending on
June 7, 2021. We received 238
comments. Many comments included
additional attachments (e.g., scanned
letters, photographs, and supporting
documents). These comments
represented the views of multiple State
and local government agencies, private
industries, nongovernmental
organizations (NGOs), and private
citizens. In addition to the individual
comments received, 3 of those
comments were petitions that contained
a total of 42,610 individual signatures
supporting the revocation of the January
7 rule. We solicited public comments on
the following topics:
1. Whether we should revoke the rule,
as proposed, 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.
The following text presents the
substantive comments we received and
the Service’s response to them.
Comment: There are other statutes
besides the MBTA that protect birds,
including NEPA, that industry would
still have to comply with, and birds
would continue to benefit from those
protections. State and local laws also
prevent the unnecessary killing of birds;
therefore, it is unnecessary for the
Service to revoke the January 7 rule.
Service Response: The Service
recognizes that there are numerous
reasons why an entity would continue
to implement best practices, including
other Federal or State laws, industry
standard practices, public perception,
etc. These mechanisms could reduce
impacts to birds in some circumstances,
but do not provide the uniform
conservation protections that Federal
regulation can provide. In any case,
proper interpretation of the MBTA does
not change based on whether other
statutes or practices may be protective
of migratory birds. Rather, the
interpretation must be guided by the
MBTA itself. Here, the Service believes
the best path forward is to revoke the
January 7 rule as it presents an
interpretation that is not the best
interpretation of the MBTA.
Comment: Several commenters stated
that they were against revocation of the
rule because it would create uncertainty
by returning to inconsistent
enforcement discretion when incidental
take occurs under the MBTA.
Service Response: The Service
acknowledges that this final rule, by its
terms, simply revokes the January 7 rule
by removing the regulatory language at
50 CFR 10.14 and does not purport to
replace that regulation with new
regulatory language at this time.
However, upon revocation of the rule,
the Service expects to develop a
comprehensive regulatory framework
governing MBTA compliance and
enforcement to reduce public
uncertainty and provide consistent
implementation of the MBTA. To begin
that process, we issued an advanced
notice of proposed rulemaking
concurrently with publication of this
final rule that requests public input on
a potential regulatory framework for
authorizing incidental take under the
MBTA. In addition, while certainty in
application of the law is a significant
consideration, ultimately the Service
must interpret and implement the
MBTA in a manner that best effectuates
Congress’ intent. For the reasons
explained herein, the Service believes
that the January 7 rule does not reflect
the best reading of the MBTA’s text,
purpose, and history and therefore
should be revoked.
Comment: Several commenters stated
they were against the revocation of the
final rule as it would create undue
economic burden and expose industry
to prosecution.
Service Response: The Service
acknowledges that implementing best
practices to reduce bird mortality from
some industry sectors can include
increased costs. However, during the
January 7 rulemaking process, most
industry sectors informed the Service
that they would continue to implement
best practices regardless of our
regulatory position. Thus, we do not
expect a significant increase in
economic burden on these industries.
Moreover, while consideration of
regulatory burdens is undoubtedly
important, ultimately the Service’s
interpretation of the MBTA must be
guided by the MBTA itself.
Comment: The proposed rule does not
reconcile varying court decisions or
discuss how the Service would address
MBTA enforcement.
Service Response: Upon revocation of
the January 7 rule, the Service will
apply enforcement discretion and not
prioritize investigating projects that
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implement best practices to avoid and
minimize impacts to migratory birds.
Enforcement of the MBTA would be
applied consistent with applicable case
law. As noted in the proposed rule
preamble, reference to case law can be
used to bolster either interpretation as
demonstrated by the relevant analysis in
the January 7 rule concluding that case
law bolsters the interpretation that the
MBTA does not prohibit incidental take
versus the opposite conclusion in the
initial Solicitor’s Opinion, M–37041.
Thus, case law is of limited assistance
and cannot be reconciled in adopting
either interpretation. On balance, we
conclude that case law generally favors
an interpretation that the MBTA
prohibits incidental take as explained in
M–37041, but we acknowledge there are
cases, such as the CITGO case in the
Fifth Circuit Court of Appeals, that
adopt the opposite interpretation. In the
longer term, the Service expects to
implement a comprehensive regulatory
framework governing MBTA
compliance and enforcement to reduce
public uncertainty and provide
consistent implementation of the
MBTA.
Comment: Some commenters stated
that the rule should not be revoked until
an enforcement policy, general permit
system, or de minimis standard for
incidental take is developed.
Service Response: Given the Service’s
conclusion that the January 7 rule does
not reflect the best interpretation of the
MBTA, the Service decided that the
appropriate initial step is to
immediately revoke that rule before the
Service considers a replacement policy
or regulation. The Service issued a
Director’s Order concurrently with this
final rule that clarifies how the MBTA
will be implemented and enforced after
this final rule becomes effective. The
Service will consider developing an
appropriate regulatory framework to
authorize incidental take consistent
with application of best management
practices in the future.
Comment: Several commenters stated
that they were neutral regarding
revocation of the rule, but that if the
Service finalized revocation, it should
then promulgate a rule that creates a
permitting program so that industry
would have a means of compliance and
legal certainty.
Service Response: Upon revocation of
the January 7 rule, the Service will
evaluate options to develop a formal
approach to authorize compliance with
the MBTA in the context of incidental
take of migratory birds.
Comment: Some commenters stated
they will continue to use best practices
to avoid and minimize bird mortality
regardless of the regulatory approach
adopted by the Service.
Service Response: The Service
acknowledges and appreciates industry
efforts to reduce impacts on migratory
birds regardless of MBTA policy
positions. The Service envisions any
future regulatory approach to
authorizing incidental take will be
rooted in the implementation of
industry best practices. We will
continue to work with industry to
provide guidance on the
appropriateness and implementation of
those best practices.
Comment: Some commenters stated
that, while reversing the rule was a
positive first step, it must be followed
by rulemaking that establishes an
incidental take permitting system.
Service Response: Upon revocation of
the January 7 rule, the Service will
evaluate options for developing a
regulatory approach to resolve any
uncertainties pertaining to MBTA
compliance. In the short term, the
Service issued a Director’s Order
clarifying our current enforcement
position and an advanced notice of
proposed rulemaking to inform
development of a longer-term proposal
to implement an incidental take
authorization framework.
Comment: The Service should revoke
the January 7 rule and return to the
previous interpretation that incidental
take is prohibited by the MBTA because
that interpretation is more aligned with
judicial precedent.
Service Response: We agree that the
interpretation that incidental take is
prohibited under the MBTA is
consistent with judicial precedent in
many jurisdictions and is the best
interpretation of the law. Upon
revocation of the January 7 rule, we will
return to our prior interpretation that
the MBTA prohibits incidental take.
However, we will also engage in
rulemaking to codify the interpretation
that the MBTA prohibits incidental take
to provide the public with greater clarity
regarding what violations of the MBTA
we will prioritize for enforcement.
Comment: One commenter argued
that if the January 7 rule is revoked, all
contracts affected by reliance on the
January 7 rule need to be grandfathered
to avoid impacting the terms under
which those contracts were negotiated.
Service Response: Any contracts
entered into that may be affected by
reliance on the January 7 rule are not
within the Service’s jurisdiction to
address. The Service does not have the
authority to mandate any alteration of
private contracts, nor does it believe it
necessary to create a regulatory carve-
out for contracts negotiated in good faith
and placed into effect during the period
between March 8 when the January 7
rule went into effect and the date this
final rule will become effective (see
DATES). We will continue to work with
companies on a case-by-case basis and
encourage implementation or continued
use of best management practices that
avoid or minimize incidental take of
migratory birds. We will consider any
potential effect of reliance on the short-
term applicability of the January 7 rule
in working with those companies and in
prioritizing our enforcement resources.
As noted above, the Service requested
comments on specific reliance interests
that might be affected by revocation of
the rule. We received several comments
such as this one that generally stated
how reliance interests may be affected
by revoking the rule but without
providing specific instances to
corroborate those statements. No
commenters identified any specific
circumstances or situations where
entities had relied on the January 7 rule
and as a result their reliance interest
would be affected by the rule’s
revocation. Moreover, many
commenters noted that entities would
continue to implement best
management practices and conservation
measures for a variety of reasons despite
the January 7 rule, including
compliance with federal and state
regulations other than the MBTA.
Comment: Revocation of the January 7
rule is appropriate because birds
provide substantial economic benefits
via recreational bird watching/hunting
and fines for MBTA violations
contribute to bird conservation actions.
Service Response: The Service agrees
that birds provide significant economic
benefits for bird watching, bird hunting,
and general enjoyment by the American
public. Birds also provide critical
ecosystems services reducing the costs
and need for pest control, pollination,
and other services beneficial to humans.
Comment: Many commenters
supported revocation of the January 7
rule and urged the Service to work with
States and industries to find best
practices to balance industry needs and
bird protections.
Service Response: The Service has
and will continue to work with Federal
and State agencies, NGOs, and industry
to identify, develop, and evaluate
actions that either avoid or minimize
the impacts to migratory birds. The
Service will continue to develop
policies and regulations to further
develop this cooperative approach. This
approach will provide a resilient, long-
term framework for implementing the
MBTA that will provide long-term
certainty to the regulated community
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and improved conservation of migratory
birds.
Comment: Revoking the January 7
rule is best for bird conservation and
reduces the chance that a species may
eventually need to be listed as
threatened or endangered.
Service Response: The Service agrees
that working with Federal and State
agencies, NGOs, and industry to avoid
and minimize the incidental take of
migratory birds is critical to the
conservation of migratory birds and may
reduce the number of bird species that
require protection under the
Endangered Species Act in the long
term.
Comment: Existing science supports
leaving the January 7 rule in place
because predators are a significant
source of threats to migratory birds
according to a Service website (https://
www.fws.gov/birds/bird-enthusiasts/
threats-to-birds.php). Thus, the Service
should focus its efforts and use
scientifically sound conservation and
policies to address those impacts.
Service Response: The Service agrees
that predators are a source of mortality
for birds. However, the rule the Service
revokes applies to the incidental take of
birds caused directly by human
activities, not to predator impacts in
general. Incidental take of birds is a
leading cause of avian mortality, and the
Service’s revocation of the January 7
rule will help reduce the effects of
incidental take on migratory bird
populations. Moreover, proper
interpretation of the MBTA does not
change based on whether non-human
factors adversely impact migratory
birds. Rather, the interpretation must be
guided by the MBTA itself.
Comment: The January 7 rule should
be revoked because the MBTA has
proven to be a highly successful tool for
co-management, regulation, and
mitigation of negative effects on
migratory bird populations across State
and international borders, strengthening
the collaborative conservation efforts
between State, Tribal, territorial,
provincial, and Federal agencies as well
as the four regional Flyway Councils.
State agencies and their conservation
partners have long expressed the need
for the protections this rule would
provide.
Service Response: The Service agrees
the MBTA is one of the best tools for the
conservation and management of
migratory birds and looks forward to
working with all stakeholders in
developing additional steps to clarify its
implementation of the MBTA in the
context of incidental take. The Service
will provide the public with
opportunities to comment on reasonable
implementation alternatives throughout
that process.
Comment: Repeal of the January 7
rule would greatly expand the Service’s
interpretation of the MBTA and expose
incidental-take violations to criminal
prosecution.
Service Response: The commenter is
correct that revoking the January 7 rule
will allow for prosecution of actions
that incidentally take migratory birds.
The Service will rely on judicious use
of enforcement discretion to determine
whether to enforce the statute in these
situations as it did for decades prior to
the recent change in interpretation
codified by the January 7 rule.
Comment: The interpretation of the
MBTA codified at 50 CFR 10.14 by the
January 7 rule better accords with the
language and purpose of the MBTA as
passed by Congress. Focusing on the
plain language of the MBTA and
appropriate canons of statutory
construction results in an interpretation
consistent with that codified at 50 CFR
10.14, which thus should not be
revoked.
Service Response: We disagree with
the commenter for the reasons spelled
out in the preamble to this final rule.
Applying canons of statutory
construction to the relevant language in
the MBTA has resulted in courts
reaching opposite conclusions regarding
whether the plain language of the
MBTA prohibits or excludes incidental
take of migratory birds.
Comment: The Service should consult
with other Federal agencies, including
the Department of Justice to ensure that
this rulemaking is constitutional.
Service Response: This rulemaking
has undergone a rigorous interagency
review process, as required by Executive
Order 12866.
Comment: The Service’s
interpretation of the MBTA is not
entitled to Chevron deference because
Chevron deference is an
unconstitutional abdication of the
judicial role of independent judgment,
violates the separation of powers, and
contravenes due process.
Service Response: The Service is
revoking the January 7 rule because it
does not represent the best
interpretation of the MBTA, whether the
operative statutory language is plain or
ambiguous. We do not opine here on the
constitutionality of Chevron deference.
Any concerns about whether the case
giving rise to the concept of Chevron
deference was correctly decided are
both outside the Service’s jurisdiction
under the MBTA and, more to the point,
not directly relevant to our decision to
revoke the January 7 rule.
Comment: The proposed rule
incorrectly focuses on five of the acts
prohibited by the MBTA in section 703.
But section 703 prohibits 22 acts, almost
all of which involve deliberate acts.
Thus, application of the noscitur a
sociis canon strongly favors interpreting
the prohibited acts to involve deliberate
actions. Even if ‘‘take,’’ ‘‘kill,’’ and even
‘‘capture’’ are ambiguous terms that
could apply to both direct and indirect
actions, there are 19 other terms that
apply to direct actions; therefore, the
most natural reading is that Congress
intended all 22 terms to apply to
deliberate acts directed at migratory
birds.
Service Response: As both the
proposed rule, the January 7 rule, and
the Jorjani Opinion all conclude, the
operative terms that are relevant to
determining whether the MBTA
prohibits incidental take are the five
terms ‘‘hunt, pursue, capture, kill, and
take.’’ The remaining 17 terms all relate
to activities that comprise commercial
use of migratory birds, which
necessarily entail an act directed at
migratory birds given they all require
possession or attempted possession. The
17 actions related to commercial use are
simply not relevant to whether the
MBTA prohibits incidental taking or
killing of migratory birds. Those actions
are only relevant once a migratory bird
has already been taken, captured, or
killed. Given that at least two, and likely
three, of the five operative terms are
ambiguous and could apply to direct or
incidental actions, application of the
noscitur a sociis canon to bolster either
interpretation is highly suspect.
Comment: The Service’s reliance on
the military-readiness authorization
mandated by the Stump Act to
demonstrate that Congress interpreted
the MBTA at that time to prohibit
incidental take is misplaced. The Stump
Act stated that the MBTA does not
apply to incidental take during military-
readiness activities in the first place and
mandated that the Service issue a
regulation acknowledging that such
activities are not subject to the MBTA.
The Stump Act provides for the
continued exemption of any incidental
take caused by military-readiness
activities rather than providing for an
authorization of incidental take by the
Service.
Service Response: This argument
relies on a selective reading of the
Stump Act. The Stump Act’s statement
that the MBTA does not apply to
military-readiness activities was not a
general statement of the MBTA’s
applicability at that time, but instead a
specific and temporary exemption for
incidental take caused by military-
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readiness activities until the Service
developed and published a rule
specifically exempting those activities.
Far from proving that the Service never
had authority to prohibit incidental take
caused by military-readiness activities
in the first place, the explicit temporary
nature of the exemption strongly
implies the exact opposite. Moreover,
the rule promulgated by the Service
with the concurrence of the Secretary of
Defense as required by the Stump Act
calls for suspension or withdrawal of
the authorization if certain conditions
occur. Thus, the permanence of the
exemption is conditional. The Stump
Act describes the relevant regulations to
be prescribed as both ‘‘authorizing
incidental take’’ and ‘‘to exempt the
Armed Forces for the incidental take of
migratory birds.’’ Thus, it is certainly
reasonable to infer that the Service may
condition that take as it did in the
military-readiness rule whatever label is
given to that authority.
Comment: The proposed revocation
rule suggests that the Stump Act’s
explicit authorization of incidental take
during military readiness activities
‘‘reflects a change in Congress’
‘governing understanding’ of the MBTA,
and that henceforth incidental take from
any activity other than military
readiness activities could be criminally
prosecuted.’’
Service Response: This is a
mischaracterization of the proposed rule
that echoes the Fifth Circuit’s analysis
of the Stump Act in CITGO. The Service
does not argue that the military-
readiness authorization represented a
change in congressional interpretation
of the MBTA that suddenly applied
incidental take prohibitions to all
activities not involving military
readiness. In fact, the opposite is true.
The Stump Act makes clear that
Congress already interpreted the MBTA
to prohibit incidental take and the
military-readiness exception would
simply not have been necessary if
Congress had instead considered the
MBTA to exclude incidental take at that
time. If Congress had considered the
scope of the MBTA to exclude
incidental take at the time and simply
wanted to shield the military from
further litigation over its military-
readiness activities, it could easily have
signaled that intent and clarified that it
did not consider the MBTA to prohibit
incidental take. The specific exceptions
from the authorization in the legislation
for non-readiness activities such as the
routine operation of installation
operating support functions are best
understood not to support a reading that
the authorization was intended as a
narrow exemption to shield the military
from further MBTA litigation even
though Congress considered the MBTA
not to prohibit incidental take.
Comment: If the Service revokes the
January 7 rule, it will be free to use the
responsible-corporate-officer doctrine to
bring criminal charges against corporate
executives whose companies may cause
incidental harm to migratory birds.
Service Response: Decisions regarding
whether to file criminal charges are
made by the Department of Justice, in
accordance with publicly available
policies of that Department. In the
decades prior to the January 7 rule, the
Service is not aware of charges having
been brought by the Department of
Justice against corporate executives for
incidental take, under the MBTA,
caused by their companies.
Comment: Application of the MBTA
to incidental take is inconsistent with
the Service’s general regulation defining
‘‘take’’ to mean ‘‘to pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or
attempt [those acts].’’ 50 CFR 10.12.
Each of these words connotes an active
effort to harm a migratory bird and thus
excludes actions that may incidentally
and indirectly lead to such harm.
Service Response: This argument is
simply an extension of the noscitur a
sociis argument that relies on
interpreting terms such as ‘‘kill,’’
‘‘wound,’’ and ‘‘capture’’ as
unambiguously referring to acts directed
at migratory birds because of their
placement in a list of other terms that
can only be construed as directed at
birds. However, the fact that those terms
could equally apply to incidental
conduct undermines that argument.
Moreover, the Service clearly did not
interpret its own regulation in that
manner when it enforced the MBTA in
the context of incidental take for over 40
years prior to publication of the Jorjani
Opinion. Moreover, Executive Order
13186, which interprets the term ‘‘take’’
in 50 CFR 10.12 to apply to both
intentional and unintentional take, has
not been amended or repealed since its
issuance in 2001 (66 FR 3853, January
17, 2001). The Service’s interpretation
of 50 CFR 10.12 to apply to incidental
taking and killing in the context of the
MBTA has been longstanding prior to
2017, and thus, the revocation rule is
not breaking new ground and is not
inconsistent with that regulation.
Comment: The revocation of an
existing rule requires an environmental
assessment under NEPA. Because the
Service drafted an EIS to accompany the
original rule after determining it was a
major Federal action, revocation is also
a major Federal action requiring further
NEPA review.
Service Response: Revocation of the
existing rule and a return to the
Service’s prior interpretation of the
MBTA is addressed in the EIS
associated with the January 7 rule as
Alternative B. We have issued a new
Record of Decision that reflects our
selection of Alternative B and describes
how we will implement that alternative.
Supplementation of the prior EIS is not
necessary as none of the criteria for
supplementation have been met. Our
determination that supplementing the
prior EIS is not necessary is explained
in more detail in the Record of Decision
(ROD) associated with this revocation
rule, which is available at https://
www.fws.gov/regulations/mbta/
resources.
Comment: It is improper to ignore
three different circuit court conclusions
that conclude the MBTA does not
prohibit incidental take and instead rely
on a district court decision.
Service Response: As explained in the
preamble to this final rule, we have not
ignored the conclusions of any of the
circuit courts that have ruled on this
issue. One circuit court has clearly held
that the MBTA does not prohibit
incidental take, and two circuit courts
have held that it does. Other circuit
courts have opined on the issue in dicta.
We have assessed all these court
decisions in reaching our decision to
revoke the January 7 rule.
Comment: The Service should not
write a regulation to declare the scope
and meaning of a statute over 100 years
after its enactment. The Service should
revoke the January 7 rule but should not
replace it with a regulation codifying a
different interpretation of the MBTA.
Service Response: While we agree
with the commenter that the January 7
rule should be revoked, we do not agree
that the Service lacks authority to
interpret the MBTA. Congress
specifically provided the Secretary of
the Interior with the authority to
implement the MBTA. The Secretary
has delegated that authority to the
Service. Implementation of legislation
often requires an agency to clarify
language in the statute that is
ambiguous and impliedly left to the
agency’s discretion to interpret and
clarify. An agency may also clarify the
plain meaning of a statute if it
determines there is no ambiguity.
Comment: Revoking the January 7
rule would result in significant
uncertainty and potentially harsh and
inequitable consequences for key sectors
of U.S. industry through a return to
uneven enforcement discretion.
Service Response: The Service agrees
that splits of opinion in circuit courts
regarding the applicability of incidental
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take requires clarification, which the
Service has the authority to address
through enforcement discretion and
policy. However, the Service has a
history of working with industry to
employ best practices to reduce
incidental take under the MBTA and
pursued only the most egregious
offenders. Thus, the Service disagrees
that application of enforcement
discretion will result in ‘‘harsh and
inequitable consequences.’’ Further, the
Service will continue to develop clearer
standards for regulation of incidental
take to reduce uncertainty and to ensure
enforcement is not uneven. We have
also issued a Director’s Order
concurrently with this final rule that
clarifies our current enforcement
position and how the Service will
prioritize enforcement actions when this
rule becomes effective.
Comment: The Service should retain
a bright-line standard that the MBTA
does not prohibit incidental take. A
bright-line rule provides important
certainty to a wide range of entities.
Service Response: While we disagree
that the MBTA does not prohibit
incidental take, we agree that a bright-
line standard is a preferable long-term
solution to address actions that
incidentally take migratory birds. We
will continue to work, after publication
of this revocation rule, to develop a
bright-line standard governing
regulation of incidental take under the
MBTA that provides certainty to
regulated entities.
Comment: Retaining the January 7
rule will not result in significant
negative impacts to avian species
because companies are already
motivated to conserve those species
through implementation of best
management practices and are already
subject to a wide range of other Federal,
State, and local avian protection laws.
Service Response: The Service
understands that a number of other
Federal, State, and local laws and
regulations provide some protection to
birds. However, these laws and
regulations vary by State, and
companies are currently free to cease
best practices that were undertaken
based on compliance with the MBTA.
This situation has significant potential
for negative impacts to migratory birds
from current and future industry
projects.
Comment: Retaining the January 7
rule will promote better dialogue and
more cooperation by removing the
potential for negative repercussions
resulting from candid communications
with the Service. Companies will work
more collaboratively with the Service in
an environment of certainty and mutual
understanding. Current efforts are
supporting migratory birds and reducing
impacts, including voluntary efforts like
the Land-based Wind Energy Guidelines
and Avian Protection Plan Guidelines
for power lines, as well as grant
programs like America’s Conservation
Enhancement Act of 2020, Neotropical
Migratory Bird Conservation Act, Great
American Outdoors Act, Farm Bills, and
the North American Waterfowl
Management Plan.
Service Response: The Service agrees
that industries attempting to employ
best practices deserve encouragement
and support from the Service, including
candid communications. The Service
will continue to work collaboratively
after revocation of this rule to create
clear and achievable standards for
regulated entities. The Service agrees
that the grant programs mentioned help
to conserve and restore habitat for
migratory birds and that the guidelines
provide useful suggestions that some
industries may follow to help avoid or
reduce incidental take of migratory
birds. The Service concludes, however,
that prohibition of incidental take is
consistent with the best interpretation of
the MBTA and that this tool is necessary
to help slow the decline of many species
of migratory birds.
Comment: One commenter stated that
the January 7 rule should not be revoked
because it provides regulatory certainty
and supports current efforts to improve
U.S. infrastructure.
Service Response: While the Service
agrees that the January 7 rule provides
regulatory certainty, we also believe that
prohibition of incidental take is
consistent with the best legal
interpretation under the MBTA. Further,
the Service has a long track record of
working with industry to avoid and
minimize incidental take while also
allowing infrastructure plans to
proceed. The Service disagrees with the
assertion that revoking the January 7
rule will inevitably add significant cost
and delays to the implementation of
infrastructure programs, nor does it
agree with the assertion that protecting
migratory birds from incidental take
will delay climate benefits provided by
new, resilient infrastructure.
Comment: The Service has failed to
provide an adequate rationale for its
change in policy and position on
whether the MBTA prohibits incidental
take, and thus violates the
Administrative Procedure Act.
Service Response: We respectfully
disagree and refer the commenter to the
detailed explanation and rationale
provided in the preamble to this rule. It
is important to note that this rule, by its
terms, does nothing more than revoke
the language at 50 CFR 10.14 that
codifies an interpretation that the
MBTA does not prohibit incidental take.
We are not proposing replacement
language at this time. However, we will
propose to do so in the near future and
continue to develop and publish
policies and regulations that provide the
public with greater certainty regarding
compliance with the MBTA.
Comment: In the January 7 rule, the
Service stated it had grave
constitutional due process concerns
with the prior agency practice of using
enforcement discretion to implement
the Service’s prior interpretation that
the MBTA prohibits incidental take. The
Service has not explained why those
due process concerns have disappeared
in considering revocation of the January
7 rule.
Service Response: In promulgating
this revocation rule, we reevaluated the
constitutional concerns we previously
categorized as grave. Our previous
enforcement policy implemented prior
to the Jorjani Opinion was exercised
judiciously, focusing on implementation
of best practices by various industries to
mitigate incidental take of migratory
birds. The Service’s practice was to
notify industries that their actions
caused incidental take and give them an
opportunity to implement best practices
to avoid or mitigate that take prior to
bringing any enforcement action. This
approach is entirely consistent with that
set forth by the Tenth Circuit Court of
Appeals in United States v. Apollo
Energies, an approach the court
considered would alleviate any due
process concerns associated with using
enforcement discretion to implement
the statute in the context of incidental
take. A close examination of the past
history of the Service’s exercise of
enforcement discretion simply does not
invoke significant constitutional due
process concerns. Moreover, after
revocation of the January 7 rule, we will
develop further policy to implement our
interpretation that the MBTA prohibits
incidental take to provide the public
with greater certainty regarding
enforcement, including promulgating a
regulation that codifies our current
interpretation of the MBTA. We have
also issued a Director’s Order
concurrently with the publication of
this rule that explains in more detail our
enforcement priorities regarding
incidental take of migratory birds and
published an advance notice of
proposed rulemaking to seek public
input on an authorization framework.
Both actions will provide the public
with more clarity regarding compliance
with the MBTA and alleviate any
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potential remaining constitutional due
process concerns.
Comment: The Service should take
public comment on alternatives to the
proposed revocation rather than framing
the proposed rule as a take-it-or-leave-
it offer.
Service Response: At this stage, the
Service simply proposed to revoke the
January 7 rule and return to the
longstanding prior agency practice of
interpreting the MBTA to prohibit
incidental take. The alternatives of
keeping the rule in place or revoking it
are entirely consistent with the
alternatives proposed during
development of the January 7 rule and
analyzed in the accompanying EIS.
Thus, the proposal to revoke that rule
was entirely in keeping with the
approach taken in the January 7 rule
itself. As explained in the Record of
Decision for this rulemaking, the
Service will develop additional steps to
clarify its implementation of Alternative
B of the EIS developed in association
with the January 7 rule. The Service will
provide the public with opportunities to
comment on reasonable implementation
alternatives throughout that process.
Comment: Interpreting the MBTA to
prohibit incidental take produces
absurd results, such as prosecution of
bird deaths caused by automobiles,
airplanes, plate-glass modern office
buildings, or picture windows in
residential buildings.
Service Response: This concern is
simply not borne out by the Service’s
past practice. The Service has not
brought an enforcement action for any
of the actions presented by the
commenter as absurd targets of
enforcement. Interpreting the MBTA to
prohibit incidental take has not led to
absurd results in the past, and this past
practice demonstrates there is no reason
to believe it will lead to absurd results
in the future. The Service also notes, as
reflected in the associated Record of
Decision, that this revocation rule is
simply the first step in a process to
implement a fair and public process to
clarify the scope of the MBTA as it
relates to incidental take and explain
how regulated entities may comply with
the MBTA in that context.
Comment: Revoking the January 7
rule could potentially subject to
criminal liability an effectively limitless
number of lawful everyday activities.
No one would have fair notice of which
of their daily activities could cause
them to commit a Federal crime, and no
one can sufficiently conform their
behavior to fully avoid that liability.
Service Response: We do not agree
that simply revoking the January 7 rule
will automatically subject a limitless
number of everyday activities to
potential criminal liability. That
scenario has never been the case under
the Service’s past enforcement of the
MBTA and will not be the case after
revocation of the January 7 rule. Prior to
issuance of the Jorjani Opinion, the
Service followed the direction of the
10th Circuit Court of Appeals in the
United States v. Apollo Energies case by
providing potential violators with notice
of any activities that are causing
incidental take and an opportunity to
correct or mitigate that take before
considering moving forward with an
enforcement action. The Service has
published an enforcement policy in the
form of a Director’s Order concurrently
with this rule and will provide further
clarification regarding its approach to
enforcing the MBTA after revocation of
the January 7 rule. This approach will
give the regulated community fair notice
of what actions the Service will
consider to be violations of the statute.
Comment: The Service should not use
potential funding that could be
generated by criminalizing incidental
take as a basis for revoking the January
7 rule.
Service Response: The Service did not
intend to suggest that funding of the
North American Wetlands Conservation
Act fund through criminal fines
resulting from enforcement of incidental
take provides a basis for revoking the
January 7 rule. Our intent in including
this information is to provide a
complete accounting to the public on
the effect of the January 7 rule’s
codification of an interpretation that the
MBTA does not prohibit incidental take.
Comment: The Service should retain
the January 7 rule and review all MOUs
(memorandums of understanding)
drafted pursuant to Executive Order
13186 to ensure they conform to the
January 7 rule.
Service Response: Executive Order
13186 and any MOUs entered into to
comply with the Executive order have
remained in effect through both the
January 7 rulemaking and this
rulemaking to revoke the January 7 rule.
The various interagency MOUs conform
to the Executive Order and are not
contingent on any rulemaking
interpreting whether the MBTA
prohibits or excludes incidental take.
Comment: The MBTA’s reliance on
criminal penalties may be an
appropriate deterrence for illegal
hunting or trade, but not for
unintentional take. If the MBTA is read
to apply to any and all take of migratory
birds, the agency is left to decide, with
minimal direction, what causes of bird
mortality to pursue, and among those,
what conduct warrants sanctions.
However, the Service can easily provide
greater certainty, and make better use of
its own resources, through the issuance
of a formal MBTA enforcement policy
issued contemporaneously with
adoption of the proposed revocation
rule.
Service Response: The Service agrees
that applying the MBTA to each and
every case of incidental take of a
migratory bird is not feasible or
desirable and would not be an efficient
use of agency resources. The Service
also agrees that issuing a formal
enforcement policy upon revocation of
the January 7 rule would be beneficial
and provide the public with greater
certainty regarding what activities may
be subject to enforcement. Therefore,
the Service has issued an enforcement
policy in the form of a Director’s Order
upon publication of this rule to revoke
the January 7 rule as part of a broader
strategy to provide the public with
greater certainty regarding what the
MBTA prohibits along with guidance to
achieve compliance.
Comment: If the Service determines
that revocation of the 2021 rule is
necessary, the Service must take the
appropriate steps to resolve the
regulatory uncertainty and enforcement
concerns that stem from that approach.
In promulgating regulations and
establishing a program to address
incidental take, the Service must use the
authority provided by section 2 of the
MBTA to craft exceptions to the conduct
prohibited under the MBTA.
Service Response: The Service will
take this comment into account in
considering whether to develop an
authorization framework for incidental
take after finalizing this revocation rule.
The Service is considering various
methods to standardize enforcement,
provide public certainty, and authorize
incidental take, but those issues are
beyond the scope of this rulemaking.
Developing regulations that authorize
incidental take and provide specific
exceptions are among the options the
Service is considering.
Comment: If the January 7 rule is
revoked, one State agency stated it will
lose the benefit of being shielded from
incidental take liability when
conducting habitat-enhancement
activities, such as prescribed burns.
That State requested that the Service
create an exemption for such activities
and proposed specific language for the
exemption.
Service Response: The Service will
take this comment into account in
considering whether to develop an
authorization framework for incidental
take after finalizing this revocation rule.
We will also consider the request for
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exceptions or exemptions, as well as the
specific language provided by the
commenter, in such a framework. We
recognize that habitat-enhancement
activities, including prescribed burns,
can result in incidental take in the short
term but can also provide positive
benefits to migratory birds in the
medium-to-long term that may outweigh
any short-term incidental take. For these
reasons, prescribed burns following best
management practices to enhance
wildlife habitat were not a priority for
enforcement during the several decades
the Service interpreted the MBTA to
prohibit incidental take prior to the
change in interpretation precipitated by
the Solicitor’s Opinion, M–37050.
Comment: Given that the Trump
administration’s interpretation of the
MBTA was found invalid by a Federal
court, the commenter was concerned the
Service’s slow approach to revoking the
rule and enacting new rules to protect
migratory birds will leave vulnerable
bird populations unprotected for an
unnecessarily long period of time. We
encourage the Service to move quickly
to restart enforcement of the MBTA
against industrial actions that lead to
harm or death of birds.
Service Response: With this rule, the
Service has revoked the January 7 rule.
We have issued a Director’s Order
concurrently with this rule that explains
our enforcement policy when the
revocation rule becomes effective.
Comment: Revoking the January 7
rule is a necessary first step to comply
with congressional language and intent
and protect migratory birds from
additional population declines. But the
Service must not stop there. A robust
regulatory system is necessary to reduce
the rate of incidental take associated
with many types of commercial,
agricultural, and industrial activities.
The energy and telecommunications
sectors in particular must be better
regulated to reduce incidental take.
Service Response: The Service does
not intend revocation of the January 7
rule to be the last step in implementing
the MBTA. The Service is considering
various methods to standardize
enforcement, provide public certainty,
and authorize incidental take.
Developing regulations that authorize
incidental take by providing a permit
system, regulatory authorizations, or
specific exceptions are among the
options the Service is considering.
Comment: The bycatch of seabirds in
fisheries is a conservation concern that
the Service can effectively mitigate
through the establishment of a
regulatory process that incorporates
conservation measures into incidental
take permits.
Service Response: The Service agrees
that incidental bycatch of seabirds is a
serious conservation concern. We will
evaluate this proposal as we consider
and develop methods that include
standardization of enforcement,
providing greater public certainty, and
potential authorization of incidental
take.
Comment: The SBREFA (Small
Business Regulatory Enforcement
Fairness Act) analysis and other
potentially important analyses of the
impacts of the proposed revocation were
missing from the rulemaking docket.
Service Response: The Service
completed the SBREFA analysis and all
other required analyses and included
the summary in the proposed rule
preamble. Unfortunately, the documents
themselves were not included in the
rulemaking docket at
www.regulations.gov with the proposed
rule. To resolve this issue, the Service
made the initial regulatory flexibility
analysis and the revised regulatory
impact analysis available for public
review and comment prior to finalizing
this rule and the Record of Decision (86
FR 38354, July 20, 2021).
Comment: One commenter
recommended reopening public
comment for 60 days with separate
comment periods for the Regulatory
Flexibility Act analysis.
Service Response: The Service
concluded that a 30-day comment
period was sufficient for this
rulemaking. The Service also provided
an additional 30-day comment period
for public review of the Regulatory
Flexibility Act analysis and regulatory
impact analysis. The issues central to
this rulemaking have already been
vetted through multiple public
comment periods for the January 7 rule
and associated NEPA analysis and the
rule extending the effective date of the
January 7 rule. Therefore, the Service
concluded a 30-day comment period is
sufficient for this rulemaking.
Comment: The Service should allow
Federal courts to determine the scope of
what the MBTA proscribes and adopt
prosecutorial guidelines that outline the
circumstances in which the Federal
Government will file criminal
prosecutions under the MBTA. The
executive branch has relied on the
prosecutorial discretion approach to
refrain from prosecuting MBTA cases
where there was no element of
intentional misconduct or grossly
culpable negligence for decades.
However, some unwarranted
prosecutions have occurred. The
executive branch should write fresh
guidelines based on a standard of due
care, rather than strict liability, with the
benefit of stakeholder input rather than
the Service codify its interpretation of
the statute.
Service Response: The Service does
not agree that waiting for Federal courts
to coalesce around a specific
interpretation of the MBTA is the
correct path forward. Instead, the
Service is developing regulations and
policy to provide the public and the
regulated community with a degree of
certainty regarding what constitutes a
violation of the MBTA. We agree that an
enforcement policy may be a productive
way to police incidental take under the
MBTA, particularly in the near term;
accordingly, we have issued a Director’s
Order concurrently with this final rule
that explains how we will prioritize our
enforcement resources in the context of
incidental take.
Comment: Malicious intent must be
present in order to warrant criminal
proceedings for the take of migratory
birds.
Service Response: The misdemeanor
provision of the MBTA has long been
interpreted by Federal courts as a strict
liability crime. Requiring malicious
intent before the Service initiates an
enforcement action would not be
consistent with the statutory language or
the relevant court cases. However, as
mentioned previously, the Service
issued a Director’s Order concurrently
with this final rule that explains how
we will prioritize our enforcement
resources in the context of incidental
take.
Required Determinations
National Environmental Policy Act
Because we are revoking the January
7 MBTA rule, we 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 http://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. In finalizing this rule,
we have published an amended Record
of Decision that explains our decision to
instead select the environmentally
preferable alternative, or Alternative B,
in the final EIS. Any additional, relevant
impacts on the human environment that
have occurred subsequent to our initial
Record of Decision are described in the
amended Record of Decision.
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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 evaluated the January 7 rule that
this 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 reinterpretation of the MBTA to
exclude coverage of incidental take
under the January 7 rule. Thus, revoking
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 her and
utilize such programs in furtherance of
the purposes of the Act (16 U.S.C.
1536(a)(1)). It further states that each
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 revoking 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 OMB–OIRA will review all
significant rules. OMB–OIRA has
determined that this rule is
economically significant. OIRA has also
determined that this is a major rule
under Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of
1996 (also known as the Congressional
Review Act or CRA). 5 U.S.C. 804(2).
See OIRA Conclusion of E.O. 12866
Regulatory Review of the MBTA,
available at https://www.reginfo.gov/
public/do/eoDetails?rrid=131383
(designating the MBTA rule as a major
rule under the CRA). The CRA provides
that major rules shall not take effect for
at least 60 days after publication in the
Federal Register (5 U.S.C. 801(a)(3)).
This rule will therefore be submitted to
each House of Congress and the
Comptroller General in compliance with
the CRA. 5 U.S.C. 801(a).
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 final rule in a manner consistent
with these requirements.
This final regulation revokes the
January 7 MBTA rule. The legal effect of
this rule removes from the Code of
Federal Regulations (CFR) the
interpretation that incidental take of
migratory birds is not prohibited under
the MBTA, based on 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 will
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 http://
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 views the
incidental take of migratory birds as a
potential violation of the MBTA,
consistent with judicial precedent.
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 birdwatching
opportunities. The primary cost of this
rule is the compliance cost incurred by
industry, which is also not quantifiable
based on current available data. 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
$149.3 million at a 7-percent discount
rate and $174.6 million at a 3-percent
discount rate. This would equate to an
annualized value of $14.9 million at a
7-percent discount rate and $17.5
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
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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 IRFA/FRFA 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 a FRFA, briefly summarized
below, to accompany this rule that can
be viewed online at http://
www.regulations.gov in Docket No.
FWS–HQ–MB–2018–0090.
This final 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 will
not be affected under this 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 will incur costs. The
following analysis determines whether a
significant number of small businesses
reduced best management practices and
will be impacted by this rule.
TABLE 1—DISTRIBUTION OF BUSINESSES WITHIN AFFECTED INDUSTRIES
NAICS industry description NAICS code Number of
businesses
Small business
size standard
(number of
employees)
Number
of small
businesses
Finfish Fishing ................................................................................................ 114,111 1,210
a 20 1,185
Crude Petroleum and Natural Gas Extraction ............................................... 211,111 6,878 1,250 6,868
Drilling Oil and Gas Wells ............................................................................. 213,111 2,097 1,000 2,092
Solar Electric Power Generation ................................................................... 221,114 153 250 153
Wind Electric Power Generation ................................................................... 221,115 264 250 263
Electric Bulk Power Transmission ................................................................. 221,121 261 500 214
Electric Power Distribution ............................................................................. 221,122 7,557 1,000 7,520
Wireless Telecommunications Carriers (except Satellite) ............................. 517,312 15,845 1,500 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 Fish-
eries 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
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. The Service specifically requested
public comment on any reliance
interests on 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, the
February 9 rule extending the effective
date of the January 7 rule, or the
proposed rule and no comments were
submitted by any entities identifying
reduced implementation of measures
that would have to be reinstated when
this rule becomes effective. We did
receive comments that stated that they
did not reduce best management
practices after the January 7 rule. These
comments support our estimate that
most entities did not reduce best
management practices as a result of the
January 7 rule excluding incidental take
from the scope of the MBTA. 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 will
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 will 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 requested
public comment so we can extrapolate
data, if appropriate, to each industry
sector and any affected small
businesses. In response, we received
information from the solar industry,
which we utilized in this analysis where
applicable. Table 3 summarizes likely
economic effects of the 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. The likely economic
effects summarized in table 3 were
collected during the public comment
periods associated with the January 7
rule and associated NEPA analysis, the
February 9 rule extending the effective
date of the January 7 rule, and the
proposed rule.
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54655 Federal Register /Vol. 86, No. 189/Monday, October 4, 2021/Rules and Regulations
TABLE 2—BEST MANAGEMENT PRACTICES COSTS BY INDUSTRY 1
NAICS industry Example of bird mitigation measure Estimated cost Why data are not extrapolated to entire
industry or small businesses
Finfish Fishing (NAICS 11411) .............. Changes in design of longline fishing
hooks, changes in offal management
practices, use of flagging or stream-
ers on fishing lines.
•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.
•No data available on fleet size.
•No data available on how many
measures are employed on each
vessel.
Crude Petroleum and Natural Gas Ex-
traction NAICS (211111).
•Netting of oil pits and ponds.
•Closed wastewater systems.
•$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.
•Infeasible to net pits larger than 1
acre due to sagging.
•Size distribution of oil pits is un-
known.
•Average number of pits per business
is unknown.
•Closed wastewater systems typically
used for reasons other than bird miti-
gation.
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.
•Infeasible to net pits larger than 1
acre due to sagging.
•Size distribution of oil pits is un-
known.
•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).
Solar Electric Power Generation
(NAICS 221114).
•Pre- and post-construction bird sur-
veys.
•Compliance with Avian Power Line
Interaction Committee standards.
•Installation of anti-perch devices.
•Light management measures.
•Storage of water in covered tanks.
$3,000 for two rounds of bird surveys
on 200-acre site for pre-and post-
construction, and up to $10,000 if
travel and site preparation included.
New projects can vary from 100 to
5,000 acres in size, and mortality
surveys may not scale linearly.
Wind Electric Power Generation
(NAICS 221115).
•Pre-construction adjustment of tur-
bine locations to minimize bird mor-
tality during operations.
•Pre- and post-construction bird sur-
veys.
•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 sur-
veys.
•$7,500 per power pole with high vari-
ability of cost.
•Annual nationwide labor cost to im-
plement wind energy guidelines:
$17.6M.
•Annual nationwide non-labor cost to
implement wind energy guidelines:
$36.9M.
•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.
Electric Bulk Power Transmission
(NAICS 221121).
Retrofit power poles to minimize eagle
mortality.
$7,500 per power pole with high varia-
bility of cost.
High variability in cost and need to ret-
rofit power poles.
Electric Power Distribution (NAICS
221122).
Retrofit power poles to minimize eagle
mortality.
$7,500 per power pole with high varia-
bility of cost.
High variability in cost and need to ret-
rofit power poles.
Wireless Tele-communications Carriers
(except Satellite) (NAICS 517312).
•Extinguish non-flashing lights on tow-
ers taller than 350′.
•Retrofit towers shorter than 350’ with
LED flashing lights.
•Industry saves hundreds of dollars
per year in electricity costs by extin-
guishing 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 opera-
tors 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 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.
Likely minimal effects ......... Seabirds are specifically excluded from the definition of bycatch
under the Magnuson-Stevens Fishery Conservation and Man-
agement 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.
Crude Petroleum and Natural
Gas Extraction (211111).
Using closed waste-water sys-
tems or netting of oil pits and
ponds.
Likely minimal effects ......... 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 rule is unlikely to affect a sig-
nificant number of small entities.
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54656 Federal Register /Vol. 86, No. 189/Monday, October 4, 2021/Rules and Regulations
TABLE 3—SUMMARY OF ECONOMIC EFFECTS ON SMALL BUSINESSES—Continued
NAICS industry description
(NAICS Code)
Potential bird mitigation
measures under this rule
Economic effects on small
businesses Rationale
Drilling Oil and Gas Wells
(213111).
Using closed waste-water sys-
tems or netting of oil pits and
ponds.
Likely minimal effects ......... 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 rule is unlikely to affect a sig-
nificant number of small entities.
Solar Electric Power Generation
(221114).
Monitoring bird use and mor-
tality at facilities, limited use
of deterrent systems such as
streamers and reflectors.
Likely minimal effects ......... Bird monitoring in some States may continue to be required
under State policies. The number of States and the policy de-
tails are unknown. The Solar Energy Industry Association is
not aware of any companies that reduced best management
practices as a result of the January 7 rule.
Wind Electric Power Generation
(221115).
Following Wind Energy Guide-
lines, which involve con-
ducting risk assessments for
siting facilities.
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 regu-
lated species like eagles and threatened and endangered
bats.
Electric Bulk Power Trans-
mission (221121).
Following Avian Power Line
Interaction Committee
(APLIC) guidelines.
Likely minimal effects ......... 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.
Electric Power Distribution
(221122).
Following Avian Power Line
Interaction Committee
(APLIC) guidelines.
Likely minimal effects ......... 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.
Wireless Tele-communications
Carriers (except Satellite)
(517312).
Installation of flashing obstruc-
tion lighting.
Likely minimal effects ......... Industry will likely continue to install flashing obstruction lighting
to save energy costs and to comply with recent Federal Avia-
tion Administration Lighting Circular and Federal Communica-
tion Commission regulations.
We 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 and published it for public
comment. We considered those
comments and developed a FRFA that
can be viewed online at http://
www.regulations.gov in Docket No.
FWS–HQ–MB–2018–0090. After further
review, we have determined that this
rule will not have an impact on a
substantial number of small entities.
The January 7 rule was in effect for less
than 1 year, and many comments from
industries stated that they did not make
changes in the implementation of best
practices in response to the January 7
rule because they continued to follow
various regulations and guidance (as
shown in table 3). The Service expects
the impact of this rule will be minimal
because entities did not reduce best
management practices as a result of the
January 7 rule excluding incidental take
from the scope of the MBTA. Therefore,
we certify that this rule will not have a
significant economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we have determined the following:
a. This rule would not ‘‘significantly
or uniquely’’ affect small government
activities. A small government agency
plan is not required.
b. This rule would not produce a
Federal mandate on local or State
government or private entities.
Therefore, this action is not a
‘‘significant regulatory action’’ under
the Unfunded Mandates Reform Act.
Takings
In accordance with E.O. 12630, this
rule does not contain a provision for
taking of private property and would
not have significant takings
implications. A takings implication
assessment is not required.
Federalism
This rule will not create substantial
direct effects or compliance costs on
State and local governments or preempt
State law. Some States may choose 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 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 rule will not unduly
burden the judicial system and meets
the requirements of sections 3(a) and
3(b)(2) of the Order.
Paperwork Reduction Act
This rule does not contain
information collection requirements,
and a submission to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) is not required.
We may not conduct or sponsor, and
you are not required to respond to, a
collection of information unless it
displays a currently valid OMB control
number.
List of Subjects in 50 CFR Part 10
Exports, Fish, Imports, Law
enforcement, Plants, Transportation,
Wildlife.
Regulation Removal
For the reasons described in the
preamble, we hereby amend subchapter
B of chapter I, title 50 of the Code of
Federal Regulations as set forth below:
PART 10—GENERAL PROVISIONS
■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.
§10.14 [Amended]
■2. Remove §10.14.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2021–21473 Filed 9–30–21; 8:45 am]
BILLING CODE 4333–15–P
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