[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Proposed Rules]
[Pages 5913-5915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01770]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 10
[Docket No. FWS-HQ-MB-2018-0090; FF09M29000-201-FXMB12320900000]
RIN 1018-BD76
Migratory Bird Permits; Regulations Governing Take of Migratory
Birds; Environmental Impact Statement
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Supplementary proposed rule; intent to prepare an environmental
impact statement.
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SUMMARY: This document advises that we, the U.S. Fish and Wildlife
Service (Service), intend to prepare a draft environmental impact
statement pursuant to the National Environmental Policy Act of 1969
(NEPA). The Service hereby notifies Federal, State, and local agencies,
tribes, and the public of our intentions to evaluate the potential
environmental impacts of a proposal to adopt a regulation that
clarifies that the Migratory Bird Treaty Act's prohibitions on
pursuing, hunting, taking, capturing, killing, or attempting to do the
same, apply only to actions directed at migratory birds, their nests,
or their eggs, and, therefore, do not extend to incidental take, which
occurs when injury or mortality to migratory birds results from, but is
not the purpose of, an activity. The review will analyze the
environmental effects of the proposed approach and will provide
detailed analysis of the environmental effects of the proposed rule. We
invite input from other Federal and State agencies, tribes,
nongovernmental organizations, and members of the public on the scope
of the proposed NEPA analysis, the pertinent issues we should address,
and alternatives to our proposed approach for implementing the MBTA. We
will hold multiple public scoping webinars to inform the public about
the proposal.
DATES:
Comment submission: Public scoping will begin with the publication
of this document in the Federal Register and will continue through
March 19, 2020.
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We will consider all comments on the scope of the draft environmental
review that are received or postmarked by that date. Comments received
or postmarked after that date will be considered to the extent
practicable.
Public scoping meetings: We will hold public scoping meetings in
the form of multiple webinars in February/March 2020. We will announce
exact webinar dates, times, and registration details on the internet at
https://fws.gov/migratorybirds/2020Regulation.php.
ADDRESSES:
Comment submission: You may submit written comments by one of the
following methods. Please do not submit comments by both.
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to
Docket No. FWS-HQ-MB-2018-0090.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-HQ-MB-2018-0090; U.S. Fish and Wildlife
Service; MS: JAO/1N; 5275 Leesburg Pike; Falls Church, VA 22041-3803.
We do not accept email or faxes. We will post all comments on
http://www.regulations.gov, including any personal information you
provide.
Document availability: The proposed rule and supplementary
materials will be available at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director,
Migratory Birds, U.S. Fish and Wildlife Service at 202-208-1050.
SUPPLEMENTARY INFORMATION:
Background
The Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-12) was enacted
in 1918 to help fulfill the United States' obligations under the 1916
``Convention between the United States and Great Britain for the
protection of Migratory Birds,'' 39 Stat. 1702 (Aug. 16, 1916)
(ratified Dec. 7, 1916) (Migratory Bird Treaty). The list of migratory
birds protected by the MBTA is currently codified in title 50 of the
Code of Federal Regulations at 50 CFR 10.13.
In its current form, section 2(a) of the MBTA (16 U.S.C. 703(a))
provides that, unless permitted by regulations, it is unlawful:
at any time, by any means or in any manner, to pursue, hunt, take,
capture, kill, attempt to take, capture, or kill, possess, offer for
sale, sell, offer to barter, barter, offer to purchase, purchase,
deliver for shipment, ship, export, import, cause to be shipped,
exported, or imported, deliver for transportation, transport or
cause to be transported, carry or cause to be carried, or receive
for shipment, transportation, carriage, or export, any migratory
bird, any part, nest, or egg of any such bird, or any product,
whether or not manufactured, which consists, or is composed in whole
or part, of any such bird or any part, nest, or egg thereof.
Section 3(a) of the MBTA (16 U.S.C. 704(a)) authorizes and directs the
Secretary of the Interior to ``adopt suitable regulations'' allowing
``hunting, taking, capture, killing, possession, sale, purchase,
shipment, transportation, carriage, or export of any such bird, or any
part, nest, or egg thereof'' while considering (``having due regard
to'') temperature zones and ``distribution, abundance, economic value,
breeding habits, and times and lines of migratory flight of such
birds.'' Section 3(a) also requires the Secretary to ``determine when,
to what extent, if at all, and by what means, it is compatible with the
terms of the conventions'' to adopt such regulations allowing these
otherwise-prohibited activities.
On December 22, 2017, the Principal Deputy Solicitor of the
Department of the Interior, exercising the authority of the Solicitor
pursuant to Secretary's Order 3345, issued a legal opinion, M-37050,
``The Migratory Bird Treaty Act Does Not Prohibit Incidental Take'' (M-
37050 or M-Opinion). This opinion thoroughly examined the text,
history, and purpose of the MBTA and concluded that the MBTA's
prohibitions on pursuing, hunting, taking, capturing, killing, or
attempting to do the same apply only to actions directed at migratory
birds, their nests, or their eggs. This opinion is consistent with the
Fifth Circuit's decision in United States v. CITGO Petroleum Corp., 801
F.3d 477 (5th Cir. 2015), which examined whether the MBTA prohibits
incidental take. It also marked a change from prior U.S. Fish and
Wildlife Service interpretations and an earlier Solicitor's Opinion, M-
37041, ``Incidental Take Prohibited Under the Migratory Bird Treaty
Act.'' The Office of the Solicitor performs the legal work for the
Department of the Interior, including the U.S. Fish and Wildlife
Service. The Service is the Federal agency delegated the primary
responsibility for managing migratory birds.
Need for Proposed Agency Action
The Service proposes to interpret the MBTA to prohibit only actions
directed at migratory birds, their nests, or their eggs, and to clarify
that incidental take is not prohibited. The purpose of this action is
to provide an official regulatory definition of the scope of the
statute as it relates to incidental take. The Service needs to conduct
this action to improve consistency in enforcement of the MBTA's
prohibitions across the country and thereby eliminate public
uncertainty caused by the current patchwork of legal standards across
the different Circuit Courts of Appeal, which have reached different
conclusions on the central question of whether the MBTA prohibits
incidental take. This approach also aligns with and implements the
Department's interpretation of the MBTA in M-37050.
NEPA Analysis of Potential Codification of the Solicitor's Opinion
Options
The National Environmental Policy Act of 1969 (NEPA; 42 U.S.C.
4321-4347) requires Federal agencies to undertake an assessment of the
environmental effects of any proposed action prior to making a final
decision and implementing it. NEPA requirements apply to any Federal
project, decision, or action that may have a significant impact on the
quality of the human environment. NEPA also established the Council on
Environmental Quality, which issued regulations implementing the
procedural provisions of NEPA (40 CFR 1500-1508).
We intend to complete an environmental impact statement to assess
the impacts of codifying the Solicitor's Opinion, M-37050 and the
effects on migratory bird populations of mortality resulting from
incidental take. We will address our compliance with other applicable
authorities in our proposed environmental review.
Tribal Trust Responsibilities
The Service has overarching Tribal Trust Doctrine responsibilities
to tribes under the Bald and Golden Eagle Protection Act (16 U.S.C.
668-668d); the National Historic Preservation Act (16 U.S.C. 470 et
seq.); the American Indian Religious Freedom Act (42 U.S.C. 1996); the
Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.);
Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act (June 5, 1997);
Executive Order 13007, Indian Sacred Sites (61 FR 26771, May 29, 1996);
and the Service's Native American Policy. We apply the terms ``tribal''
or ``tribe(s)'' generally to federally recognized tribes and Alaska
Native tribal entities. We will refer to Native Hawaiian Organizations
separately when we intend to include those entities. The Service will
separately consult with tribes and with Native Hawaiians on the
proposals set forth in the proposed rule. We will also ensure that
those tribes and Native
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Hawaiians wishing to engage directly in the NEPA process will have the
opportunity to do so. As part of this process, we will protect the
confidential nature of any consultations and other communications we
have with tribes and Native Hawaiians to the extent authorized by law.
Public Scoping and Comments
See DATES for information about upcoming scoping webinars. Please
note that the Service will ensure that the public scoping webinars will
be accessible to members of the public with disabilities. A primary
purpose of the scoping process is to receive suggestions and
information on the scope of issues and alternatives to consider when
drafting the environmental documents and to identify significant issues
and reasonable alternatives related to the Service's proposed action.
To ensure that we identify a range of issues and alternatives related
to the proposed action, we invite comments and suggestions from all
interested parties. We will conduct a review of this proposed action
according to the requirements of NEPA and its regulations, other
relevant Federal laws, regulations, policies, and guidance, and our
procedures for compliance with applicable regulations.
We request information from interested government agencies, Native
American tribes, Native Hawaiian Organizations, the scientific
community, industry, nongovernmental organizations, and other
interested parties. We solicit input on the following:
(1) The avoidance, minimization, and mitigation measures entities
employed to address incidental take of migratory birds (prior to M-
Opinion 37050);
(2) The direct costs associated with implementing these measures;
(3) The indirect costs that entities have incurred related to the
legal risk of prosecution for incidental take of migratory birds (e.g.,
legal fees, increased interest rates on financing, insurance,
opportunity costs);
(4) The extent that avoidance, minimization, and mitigation
measures continue to be used (after issuance of M-Opinion 37050);
(5) Any quantitative information regarding the economic benefits
and/or ecosystem services (e.g., pollination, pest control, etc.)
provided by migratory birds;
(6) Information regarding resources that may be affected by the
proposal; and
(7) Species having religious or cultural significance for tribes
and Native Hawaiian Organizations, and species having cultural
significance for the general public and impacts to cultural values from
the actions being considered.
You may submit your comments and materials by one of the methods
described above under ADDRESSES. Once the draft environmental documents
are completed, we will offer further opportunities for public comment.
Public Availability of Comments
Written comments we receive become part of the public record
associated with this action. Your address, phone number, email address,
or other personal identifying information that you include in your
comment may become publicly available. You may ask us to withhold your
personal identifying information from public review, but we cannot
guarantee that we will be able to do so. All submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, will be made available for public disclosure in their
entirety.
Authority
The authorities for this action are the Migratory Bird Treaty Act
(16 U.S.C. 703-712) and the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.).
Dated: January 6, 2020.
Rob Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-01770 Filed 1-31-20; 8:45 am]
BILLING CODE 4333-15-P