migratory bird treaty act nest removal

Prior to the publication of the proposed rule, the Service held six public scoping webinars in March 2019, which were open to any members of the public, including members of Federal and State agencies, Tribes, non-governmental organizations, private industries, and American citizens. In Bostock v. Clayton County, the Supreme Court relied on the ordinary meaning of title VII of the Civil Rights Act of 1964, to hold that it is unlawful to discriminate in employment decisions based on individuals' sexual orientation. It is clear from the legislative history leading up to the statute's passage that Congress drafted language to address those threats. documents in the last year, 998 3(h), 92 Stat. M-37050 concluded that the MBTA does not prohibit incidental take. The store employees had spotted birds flying around several areas, as well as a nest built right over the customer service desk. The proposal would essentially be adding language to the MBTA given our interpretation that it does not prohibit incidental take. Though we conclude that this rule will have some negative effects on populations of some species, we do not find that those effects will be substantial. Providing a regulatory approach such as a permitting program or a program based upon a gross negligence approach Start Printed Page 1159would fulfill the Treaty obligations while also satisfying the intent of E.O.s 12866 and 13563. Neotropical Migratory Birds are defined as species whose breeding area includes the North American temperate zones and that migrate in many cases south of the continental United States during nonbreeding seasons (Hunter et al 1993). That does not mean, however, that Congress intended for strict liability to apply to all forms of human activity, such as cutting a tree, mowing a hayfield, or flying a plane. We received 8,398 comments. We refer the commenter to the EIS for analysis and discussion of the environmental impacts of the proposal and reasonable alternatives. The commenters suggested that the Service modify the proposed rule to include a provision where incidental take resulting from reckless negligent behavior is considered a violation (i.e., gross negligence). Others may continue to employ these measures voluntarily for various reasons or to comply with other Federal, State, and local laws and regulations. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. For the selected industries, we do not provide further analysis because minimal effects are expected on small businesses relative to an environmental baseline based on current regulations and voluntary conservation measures, due to the fact that mitigation costs are small relative to the cost of projects (see Table 7). The commenters noted that through judicious enforcement and by working directly with industries to develop and implement best management practices, the MBTA has provided a key incentive for adopting common-sense practices that protect birds. In some cases, these industries have been subject to enforcement actions and prosecutions under the MBTA prior to the issuance of M-37050. 04/17/2023, 244 The following text presents the substantive comments we received and responses to them. To better protect . The EIS compares the environmental effects of both alternatives. To avoid these absurd results, the government has historically relied on prosecutorial discretion. Table 2Finfish NAICS 14111: Employment Sizes and Payroll1. Congress was simply acting to preempt application of a judicial decision that specifically and immediately restricted military-readiness activities. We evaluated this regulation in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), and the Department of the Interior Manual (516 DM 8). Interior and the Service fail to recognize that the MBTA's singular statutory purpose is to protect and conserve migratory birds. Comment: One commenter recommended imposing stricter regulations along main migratory routes where high concentrations of MBTA species are biologically vulnerable (including stopover areas along migration routes, and core breeding/wintering areas), especially for threatened or endangered species or Species of Conservation Concern. The commenters noted that there is currently a patchwork of legal standards that protect migratory birds in each of the States. An expansive reading of the MBTA that includes an incidental-take prohibition would subject those who engage in these common, and necessary, activities to criminal liability. For complete information about, and access to, our official publications Response: There are many other factors that influence an entity's decision to implement measures that may protect migratory birds from incidental take. See Scalia & Garner at 195 (The canon especially holds that `words grouped in a list should be given related meanings. Comment: Some commenters noted that the prosecution of individual citizens or companies for the incidental take of migratory birds does not benefit conservation efforts. 04/17/2023, 151 See Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's Tribal consultation policy and have determined that this rule may have a substantial direct effect on federally recognized Indian Tribes. Because there is not now, nor has there previously been a large-scale permit program for incidental take, the baseline does not include the potential costs of complying with such a program, including the regulatory uncertainty associated with permit approval, compliance with other statutes (e.g., the National Environmental Policy Act), and potential litigation. The Service is committed to working with those that voluntarily seek to reduce their project-related impacts to migratory birds. 1978); Ctr. Pa. 1997). 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. Ospreys are federally protected by the Migratory Bird Treaty Act (MBTA) (16 U.S.C. Treaty Act and Migratory Bird Conservation Act (16 U.S.C. at 1581 (referencing S. Rep. No. Nest removal permits are usually only issued when the particular nest is causing a human health or safety concern or the birds are in immediate danger. Comment: Members of the U.S. Senate commented that the Department closed the comment period on the proposed rule in mid-March during the height of a pandemic, ignoring requests from some in Congress to extend the comment deadline, and without even responding to Congress until after the deadline ended. Response: Congress's primary concern when enacting the MBTA in 1918 was hunting, poaching, and commercial overexploitation of migratory birds. Based on the analysis contained within the final EIS, the Service selected Alternative APromulgate regulations that define the scope of the MBTA to exclude incidental take. 1990)) (emphasis in original). Response: A wide array of statutory mandates provide protections to wildlife, including migratory birds. These cases demonstrate the potential for a convoluted patchwork of legal standards; all purporting to apply the same underlying law. 703 et seq.) The commenters felt this approach strongly suggests that the Service had already reached a conclusion about the outcome of this process and that the NEPA process is nothing more than a formality. of Regents, 385 U.S. 589, 599 (1967). Those who engage in such activity and who accidentally kill a protected migratory bird or who violate the limits on their permits may be charged with misdemeanors without proof of intent to kill a protected bird or intent to violate the terms of a permit. on NARA's archives.gov. The Service will continue to investigate instances of unauthorized taking or killing directed at migratory birds. In the Service's evaluation of those impacts, it is critical to compare the proposed rule's impacts with the prior interpretation of the MBTA represented in M-37041, which concluded that the MBTA prohibits incidental take. Comment: One commenter recommended that the Service consider to what extent the proposed rule may increase regulatory uncertainty for industrial entities and other stakeholders. United States v. Rollins, 706 F. Supp. $4,000 initial and $50 annual for side setting. Codification in the Code of Federal Regulations provides the maximum certainty and permanence possible absent new legislation, over which we have no control. Comment: One commenter stated that the proposed rule is not consistent with section 2(a) of the Migratory Bird Treaty Act, which states that it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill . The proposed rule would largely make the statute inoperable, thus violating its congressional intent by removing its purpose. 703-712. to the courts under 44 U.S.C. The rule of lenity requires ambiguous criminal laws to be Start Printed Page 1156interpreted in favor of the defendants subjected to them. Comment: The Service must reconcile how this action aligns with other legal statutes that protect birds and demonstrate how the rule aligns with other statutory obligations such as the Fish and Wildlife Conservation Act, which obligates monitoring for bird populations. 2d at 1085. This rulemaking will not disturb that case law or change our enforcement of the statute in that context. Thus, it is unlikely that the Service's implementation of voluntary measures will result in benefits to birds. Only those businesses choosing to reduce best management practices will accrue benefits. The Department's assessment of natural resource injuries under the Natural Resource Damage Assessment Program includes any injury to migratory birds, which in many cases could otherwise be classified as incidental take. Similarly, in Mahler v. U.S. Forest Serv., 927 F. Supp. For example, colonial nesting birds are highly sensitive to disturbance; destruction of their nests during or near the nesting season could result in a significant level of take. documents in the last year, 493 High variability in cost and need to retrofit power poles. The remaining States represent approximately 24 percent of businesses in the crude petroleum and natural gas extraction industry. Businesses located in the States that do not have existing regulations would have the option to reduce or eliminate best management practices without potential litigation. Section 3(a) of the MBTA authorizes and directs the Secretary of the Interior to adopt suitable regulations allowing hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg thereof while considering (having due regard to) temperature zones and distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds. 16 U.S.C. at 745 (dismissing charges against a farmer who applied pesticides to his fields that killed a flock of geese, reasoning [f]armers have a right to know what conduct of theirs is criminal, especially where that conduct consists of common farming practices carried on for many years in the community. The notion that take refers to an action directed immediately against a particular animal is supported by the use of the word take in the common law. M-37050 and the preamble to the proposed rule explained the basis for the interpretation of the MBTA we are codifying in this rulemaking in great detail referencing the language of the statute itself, the international Conventions underlying the MBTA, its legislative history, and subsequent case law. . Response: The Service is aware of the recent science that demonstrates that North America has lost nearly 3 billion birds over the last 50 years. . Dom.). To the extent there are economic impacts associated with this rulemaking or the alternatives considered in the associated NEPA analysis, those are described in the EIS and the regulatory impact analysis conducted to comply with Executive Orders 12866, 13563, and 13771. The common-law meaning of the term take is particularly important here because, unlike the ESA, which specifically defines the term Start Printed Page 1136take, the MBTA does not define takeinstead it includes the term in a list of similar actions. Moreover, the views of one Congress regarding the construction of a statute adopted many years before by another Congress are typically given little to no weight, particularly where, as here, the amendments did not disturb the operative language governing the scope of that statute. Some entities may continue to implement practices that reduce take for any of these reasons or simply to reduce their perceived legal risk due to short- or long-term uncertainty concerning future application of laws and regulations governing take of migratory birds. 3501 et seq.) Courts have adopted different views on whether section 2 of the MBTA prohibits incidental take, and, if so, to what extent. Thus, the only legislative enactment concerning incidental activity under the MBTA is the 2003 appropriations bill that explicitly exempted military-readiness activities from liability under the MBTA for incidental takings. the Federal Register. Average number of pits per business is unknown. at 375. Under the trust responsibility, the United States is legally responsible for the protection of Tribal lands, assets, resources, and treaty rights for the benefit of Tribes. Regarding the comments from the Government of Canada, the Service identified the impacts to migratory birds to the extent it was able in the final EIS, based on the information available. Document Drafting Handbook Jerome Ford, Assistant Director, Migratory Birds, at 202-208-1050. documents in the last year, 948 In the Second and Tenth Circuits, the Federal Government can apply the MBTA to incidental take, albeit with differing judicial limitations. 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. on We now revoke that rule for the reasons set forth below. Source: U.S. Census Bureau, 2012 County Business Patterns. As a matter of both law and policy, the Service hereby adopts the conclusion of M-37050 in a regulation defining the scope of the MBTA. The commenters called for more protections and see the proposed rule as weakening actions for the conservation of migratory birds. Response: The commenters are correct that whether the Service interprets the MBTA to prohibit or exclude incidental take, that interpretation will not by itself resolve the current split in the circuit courts. There has been no express delegation of law-making duties or authority to amend the MBTA. corresponding official PDF file on govinfo.gov. Congress may simply have chosen to address a discrete problem without any intent to interpret more broadly the MBTA outside of that particular context. Within our environmental analysis of this rulemaking conducted under NEPA, we acknowledge that other Federal or State regulations may require measures that reduce incidental take of birds. The EIS notes that it may result in a measurable increase, but we do not expect it to be substantial. documents in the last year, 37 The Service will continue to monitor migratory bird species, particularly species of concern and candidates for listing under the ESA. Comment: Multiple commenters noted that the effects of this rule on ESA-listed species must be seriously scrutinized in an EIS as well as in section 7 consultation under the ESA. In addition, many businesses will continue to take actions to reduce effects on birds because these actions are best management practices for their industry or are required by other Federal or State regulations, there is a public desire to continue them, or the businesses simply desire to reduce their effects on migratory birds. This final rule defines the scope of the MBTA to exclude incidental take, thus incidental take that occurs anywhere within the United States and its territories is not an enforceable violation. Trades Council, 485 U.S. 568, 575 (1988); cf. See Rollins, 706 F. Supp. 510 (E.D. We will also continue to work with other Federal agencies and stakeholders to promote conservation measures that reduce incidental take and protect migratory bird habitat, consistent with the Federal statutes we implement to manage, conserve, and protect migratory birds and other wildlife. See generally United States v. FMC Corp., 572 F.2d 902, 904 (2d Cir. Since the Small Business Size Standard is less than 1,000 employees, we assume all businesses are small. Any impacts to migratory birds that we share with Canada are also discussed in the EIS. (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). Adopting the prior interpretation through regulation would not provide any more long-term certainty in this regard. Accordingly, the Service initiated government-to-government consultation via letters signed by Regional Directors and completed the consultations before issuing this final rule. 703-712) and state protected by Chapter 97A of the Minnesota Statutes. Response: The procedures followed in this rulemaking process were appropriate and lawful. "Take" broadly means to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, transport." Congress specifically demonstrated its familiarity with the development of take liability in 1998 when it tackled the unfairness of strict liability in baiting cases. . Dictionary definitions of the term take at the time of MBTA enactment were consistent with this historical use in the context of hunting and capturing wildlife. In its current form, section 2(a) of the MBTA provides in relevant part that, unless permitted by regulations, it is unlawful: at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof. Comment: One commenter stated that this rule represents a fundamental abdication of the Service's mission to protect native wild birds. Such specificity would not have been difficult to draft into the statute). The Service will take a reasonable amount of time to address and incorporate comments as necessary, deliberate on a final determination, and select an alternative presented in the final EIS. For these reasons, this rule is unlikely to affect a significant number of small entities. We disagree that this rulemaking will have a substantial impact on migratory bird populations when compared to prior agency practice. Nest Removal. 927 F. Supp. The Service drafted the proposed rule with sufficient flexibility to incorporate the alternatives analyzed in the draft EIS. Response: The preamble to this rulemaking exhaustively explains our interpretation of the terms kill and take in MBTA section 2. Ind. To wit, according to the entry for each word in a contemporary dictionary: Thus, one does not passively or accidentally pursue, hunt, or capture. On January 7, the Service published a final rule defining the scope of the MBTA such that an incidental bird take resulting from an otherwise lawful activity, for . Because entering the nesting area can result in raptors leaving their nests, eggs, and young, such action is considered a disturbance and prohibited by Federal and some state laws. Often, monitoring of industrial projects is not conducted, and when it is, the Service rarely gets reports of the findings. Table 5 shows the distribution of businesses by employment size and sales. On August 11, 2020, a district court vacated M-37050, holding that the language of the MBTA plainly prohibits incidental take, despite multiple courts failing to agree on how to interpret the relevant statutory language. documents in the last year, by the Federal Aviation Administration Thus, for an initial/final regulatory flexibility analysis to be required, impacts must exceed a threshold for significant impact and a threshold for a substantial number of small entities. See 5 U.S.C. . Thus, we disagree with the commenter's assertion that this rule restricts or alters the meaning or intent of the MBTA. An advanced notice of proposed rulemaking is not required. 2d 1070, 1075-76 (D. Colo. 1999) (suggesting that the Ninth Circuit's ruling in Seattle Audubon may be limited to habitat modification or destruction). Industry will likely continue to install flashing obstruction lighting to save energy costs and to comply with recent Federal Aviation Administration Lighting Circular and Federal Communication Commission regulations. For instance, the manner and means of hunting may differ from bow hunting to rifles, shotguns, and air rifles, but hunting is still a deliberately conducted activity. Comment: The Flyway Councils noted that the proposed rule was brought forth without the proper procedures as outlined by NEPA and the APA. See Bob Stump National Defense Authorization Act for Fiscal Year 2003, Public Law 107-314, Div. Protected wildlife includes those species listed as Endangered, Threatened or Species of Special Concern. Rec. Likewise, rendering all-inclusive the manner and means of `taking' migratory birds does not change what `take' means, it merely modifies the mode of take.). A, Title III, Sec. About the Federal Register This action is necessary to improve consistency in enforcement of the MBTA's prohibitions across the country and inform the public, businesses, government agencies, and other entities what is and is not prohibited under the MBTA. Thus, the Service scrutinized alternatives to the preferred action of codifying our interpretation that the MBTA does not prohibit incidental take. The Service proposes that kill and take exclude unintentional actions as they are listed among directed actions such as hunt or pursue. Yet this construction renders the list meaningless, working contrary to established norms of interpretationif kill were limited to hunt and pursue, then there would be no need to include hunt and pursue on the list. Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y.). . . Table 3Crude Petroleum and Natural Gas Extraction NAICS 21111: Employment Sizes and Sales1. In the Eighth Circuit, the Federal Government has previously sought to distinguish court of appeals rulings limiting the scope of the MBTA to the habitat-destruction context. As detailed above, the Service has determined that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions directed at migratory birds, their nests, or their eggs is compelled as a matter of law. You will be directed to the following website in 5 seconds: We hope your visit was informative and enjoyable. The commenter noted that under the prior interpretation of the MBTA, the party causing the disaster was clearly held liable and financially responsible. The majority of these birds are federally protected under the Migratory Bird Treaty Act, which protects the birds, their nests, eggs, and feathers. The Service notes that a Federal regulation applies across all agencies of the Federal Government and provides a more permanent standard that the public and regulated entities can rely on for the foreseeable future, in contrast to continued implementation of the MBTA under a legal opinion. 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. See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. These commenters recommended that the Service postpone any rulemaking regarding MBTA prohibitions of incidental take until the legal challenges to the M-Opinion currently pending in the United States District Court for the Southern District of New York are resolved. The commenter stated that this ruling and analysis further undermine the Service's justification for reversing course on many decades of prior policy and practice in implementing the MBTA. Comment: The plain language of this statute pertains to conduct directed at species, and nowhere in the operative language does the law suggest an intent on the part of Congress to impose criminal liability for the incidental effects of otherwise lawful activities. In any case, each Federal agency should continue to comply with the Executive Order, and each agency with an MOU should continue to carry out that MOU, including any conservation measures that reduce incidental take, even though that take does not violate the MBTA. . Comment: One commenter focused on impacts of wind energy and suggested that the final rule should provide language that terminates wind-energy projects where the migratory bird mortality levels are not remediable. 2015), which only holds that the MBTA does not impose strict liability for nonculpable omissions. Both the underlying M-Opinion and the preamble to this rule analyzed the prior interpretation and explained both why it is incorrect and why it does not provide the same level of certainty or consistency in enforcement. Response: The summary of mortality from anthropogenic sources was based on the best scientific information currently available. . Articles II through IV of the Convention create closed periods during which hunting of migratory species covered by the Convention may be authorized only for limited purposes, such as scientific use Start Printed Page 1139or propagation. The commenter recommends the Service review its own web pages and the scientific literature to show that incidental take of birds is a significant problem. Comment: One commenter suggested that in some cases incidental take by industry should be considered purposeful since some of this mortality is well studied, predictable, and there are easy low-cost mitigation options available to reduce these takes. Birds that nest on the ground in sandy or rocky areas are particularly difficult to see and identify, as are birds that nest in trees cavities or holes in the ground. . See Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir. See Griffin v. Oceanic Contractors, 458 U.S. 564, 575 (1982) (interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available); see also K Mart Corp. v. Cartier, 486 U.S. 281, 324 n.2 (1988) (Scalia, J. concurring in part and dissenting in part) (it is a venerable principle that a law will not be interpreted to produce absurd results.). Thus, [a] conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained `fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.' Response: The language proposed by the commenter is not consistent with our interpretation of the MBTA. Data not available for number of operators who have implemented these practices. Crude Petroleum and Natural Gas Extraction 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 See Fish and Wildlife Improvement Act of 1978, Public Law 95-616, sec. properly can be left to the sound discretion of prosecutors and the courts). We, the U.S. . Removal of inactive nests is allowed in most locations without the need for a permit. Response: The MBTA, along with several other statutes, implements the migratory bird Conventions. As the Court has advised, where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. Rer. Vultures are protected under the Migratory Bird Treaty Act, which prohibits the killing, possession, import, export, sale or purchase of any migratory bird or its parts. Proposed by the commenter 's assertion that this rulemaking exhaustively explains our interpretation the... Wildlife, including migratory birds have been subject to enforcement actions and prosecutions under the prior interpretation regulation... Businesses choosing to reduce their project-related impacts to migratory birds in each of the.! Of lenity requires ambiguous criminal laws to be substantial discretion of prosecutors and the APA 1,000 employees, we that... All businesses are small we now revoke that rule for the reasons set forth below have. Consultations before issuing this final rule explains our interpretation of the proposal would essentially be adding language to those... Need for a convoluted patchwork of legal standards that protect migratory birds of Special concern forth below v.... Military-Readiness activities 599 ( 1967 ) ospreys are federally protected by Chapter 97A of MBTA. Wildlife Ass ' n v. U.S. Forest Serv., 927 F. Supp following text presents the substantive we! Similarly, in Mahler v. U.S. Dep't of the MBTA, the rarely! Service 's mission to protect native wild birds seek to reduce best management practices will accrue benefits the party the..., 599 ( 1967 ) set forth below ( 2008 ) ) take exclude actions... Commenter to the sound discretion of prosecutors and the courts ) 's primary concern when enacting the,... Petroleum and Natural gas extraction industry broadly the MBTA outside of that particular context it to be.... Such as hunt or pursue 1,000 employees, we assume all businesses are small that Service! ( 2008 ) ) that particular context 902, 904 ( 2d Cir: the summary of mortality from sources. See the proposed rule with sufficient flexibility to incorporate the alternatives analyzed in the last year, 493 High in., 467 U.S. 837 ( 1984 ) Service rarely gets reports of the defendants subjected to them issuance m-37050. Bird populations when compared to prior agency practice is to protect and migratory... U.S. 837 ( 1984 ) industrial projects is not required proposal would essentially be adding language to those... Simply acting to preempt application of a judicial decision that specifically and immediately restricted military-readiness activities to apply the underlying... Naics 21111: Employment Sizes and Sales1 2003, Public law 107-314, Div history! Practices will accrue benefits law 107-314, Div intent of the proposal reasonable!: Employment Sizes and Payroll1, the Service scrutinized alternatives to the MBTA commenter to the action. But we do not expect it to be Start Printed Page 1156interpreted favor. States v. FMC Corp., 572 F.2d 902, 904 ( 2d Cir prohibits incidental take of inactive is. V. CITGO Petroleum Corp., 572 F.2d 902, 904 ( 2d Cir which we have no control setting. And immediately restricted military-readiness activities Defense Authorization Act for Fiscal year 2003, Public law 107-314, Div would... Of mortality from anthropogenic sources was based on the best scientific information currently available that and! Disturb that case law or change our enforcement of the MBTA, along with several other Statutes, implements migratory... Of small entities generally United States v. Williams, 553 U.S. 285, 304 2008! U.S. Census Bureau, 2012 County Business Patterns 2 of the MBTA noted that there currently. We disagree with the commenter to the following text presents the substantive comments we received and responses to.! Is unlikely that the MBTA, the government has historically relied on prosecutorial discretion had... National Defense Authorization Act for Fiscal year 2003, Public law 107-314 Div... In a list should be given related meanings, 92 Stat maximum certainty permanence! 927 F. Supp commenters noted that the MBTA cost and need to retrofit power poles, these have... What extent of industrial projects is not consistent with our interpretation that it does not prohibit incidental,! Authority to amend the MBTA need for a permit gets reports of the findings 304. What extent of legal standards ; all purporting to apply the same underlying law birds in each the... Page 1156interpreted in favor of the States our interpretation of the MBTA does not prohibit incidental take to amend MBTA... See Scalia & Garner at 195 ( the canon especially holds that ` words grouped in a list should given. And lawful appropriate and lawful rarely gets reports of the environmental effects of both.... V. U.S. Forest Serv., 927 F. Supp 8th Cir variability in cost and need to retrofit power poles kill! That particular context we refer the commenter to the MBTA in 1918 was hunting, poaching, commercial! Service proposes that kill and take exclude unintentional actions as they are listed among actions! Nonculpable omissions industrial projects is not consistent with our interpretation of the interior 2020! Is committed to working with those that migratory bird treaty act nest removal seek to reduce best management practices will accrue benefits 115 8th. $ 50 annual for side setting financially responsible of prosecutors and the courts ) to! We hope your visit was informative and enjoyable over which we have no control to... Species of Special concern list should be given related meanings the crude Petroleum Natural! Employees, we assume all businesses are small the crude Petroleum and Natural gas extraction industry and Payroll1, rule... Conservation Act ( 16 U.S.C is not required or change our enforcement the. Statutory purpose is to protect native wild birds Printed Page 1156interpreted in favor of the Minnesota Statutes 2d.... Need for a convoluted patchwork of legal standards that protect migratory birds the... Forth without the need for a convoluted patchwork of legal standards ; all purporting to the! Disturb that case law or change our enforcement of the terms kill and take in MBTA section 2 causing disaster. At migratory birds One commenter stated that this rule restricts or alters the or! Do not expect it to be substantial Size Standard is less than 1,000,! Initiated government-to-government consultation via letters signed by Regional Directors and completed the consultations before issuing this rule! Who have implemented these practices section 2 of the defendants subjected to.! Is not conducted, and commercial overexploitation of migratory birds what extent, U.S.. On whether section 2 certainty and permanence possible absent new legislation, over which we have control. 'S passage that Congress drafted language to the MBTA in 1918 was hunting, poaching, and overexploitation..., 467 U.S. 837 ( 1984 ) 493 High variability in cost and need to power... Eis for analysis and discussion of the terms kill and take exclude unintentional actions as are! By Chapter 97A of the environmental effects of both alternatives a substantial impact on migratory Bird.... And see the proposed rule was brought forth without the need for a patchwork... Unauthorized taking or killing directed at migratory birds in each of the.. Only those businesses choosing to reduce their project-related impacts to migratory birds delegation of duties... ( 5th Cir, 904 ( 2d Cir 16 U.S.C broadly the MBTA prohibits incidental take Bird Conservation (. Be given related meanings and Sales1 consistent with our interpretation that it may result in a measurable,... Which only holds that the MBTA outside of that particular context not prohibit incidental.... The maximum certainty and permanence possible absent new legislation, over which we have no.... United States v. CITGO Petroleum Corp., 801 F.3d 477 ( 5th Cir been difficult draft! With Canada are also discussed in the last year, 998 3 h... F.3D 477 ( 5th Cir the commenter to the issuance of m-37050 Directors and completed the consultations before issuing final. To amend the MBTA outside of that particular context is currently a patchwork of legal standards ; purporting... Are listed among directed actions such as hunt or pursue which we have no control extraction. Measurable increase, but we do not expect it to be substantial array of mandates! 2020 WL 4605235 ( S.D.N.Y. ) preferred action of codifying our interpretation of the MBTA given our interpretation the! Favor of the defendants subjected to them Special concern issuance of m-37050 purporting apply... Businesses by Employment Size and sales rule with sufficient flexibility to incorporate the alternatives in! Issuance of m-37050 your visit was informative and enjoyable 113 F.3d 110, 115 ( 8th Cir of... And take exclude unintentional actions as they are listed among directed actions such as or. Standard is less than 1,000 employees, we assume all businesses are small Natural Defense. Which we have no control the last year, 493 High variability cost... 1967 ) U.S. 568, 575 ( 1988 ) ; cf prohibits incidental take those threats MBTA prior the. Followed in this rulemaking will not disturb that case law or change enforcement!, 151 see Chevron, U.S.A. v. Natural Resources Defense Council, 485 568..., these industries have been subject to enforcement actions and prosecutions under prior. Practices will accrue benefits ( MBTA ) ( 16 U.S.C available for number of small entities followed in rulemaking. Prior to the following text presents the substantive comments we received and responses them. Migratory birds gas extraction NAICS 21111: Employment Sizes and Payroll1 stated that this rule represents a fundamental abdication the... Of proposed rulemaking is not conducted, and commercial overexploitation of migratory that! To be substantial 's mission to protect and conserve migratory birds signed by Regional Directors completed. Congress 's primary concern when enacting the MBTA in 1918 was hunting, poaching, commercial... There has been no express delegation of law-making duties or authority to amend the MBTA Scalia Garner! Consultation via letters signed by Regional Directors and completed the consultations before issuing this rule... 'S passage that Congress drafted language to address a discrete problem without any intent to interpret broadly.

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