[Federal Register Volume 80, Number 100 (Tuesday, May 26, 2015)]
[Proposed Rules]
[Pages 30032-30036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12666]



Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-HQ-MB-2014-0067; FF09M29000-156-FXMB1232090BPP0]
RIN 1018-BA69

Migratory Bird Permits; Programmatic Environmental Impact 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of intent.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service, us, or we), 
intend to prepare a programmatic environmental impact statement (PEIS) 
pursuant to the National Environmental Policy Act to evaluate the 
potential environmental impacts of a proposal to authorize incidental 
take of migratory birds under the Migratory Bird Treaty Act. We are 
considering rulemaking to

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address various approaches to regulating incidental take of migratory 
birds, including issuance of general incidental take authorizations for 
some types of hazards to birds associated with particular industry 
sectors; issuance of individual permits authorizing incidental take 
from particular projects or activities; development of memoranda of 
understanding with Federal agencies authorizing incidental take from 
those agencies' operations and activities; and/or development of 
voluntary guidance for industry sectors regarding operational 
techniques or technologies that can avoid or minimize incidental take. 
The rulemaking would establish appropriate standards for any such 
regulatory approach to ensure that incidental take of migratory birds 
is appropriately mitigated, which may include requiring measures to 
avoid or minimize take or securing compensation. We invite input from 
other Federal and State agencies, tribes, nongovernmental 
organizations, and members of the public on the scope of the PEIS, the 
pertinent issues we should address, and alternatives to our proposed 
approaches for regulating incidental take.

DATES: To ensure consideration of written comments, they must be 
submitted on or before July 27, 2015.

ADDRESSES: You may submit written comments by one of the following 
methods. Please do not submit comments by both methods.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-HQ-
     U.S. mail or hand-delivery: Submit by U.S. mail to Public 
Comments Processing, Attention: FWS-HQ-MB-2014-0067; Division of Policy 
and Directives Management; U.S. Fish and Wildlife Service; 5275 
Leesburg Pike, MS-PPM, Falls Church, VA 22041-3803.
    Please note in your submission that your comments are in regard to 
Incidental Take of Migratory Birds. We will post all information 
received on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Public 
Availability of Comments section below for more information).
    We will hold public Scoping Open Houses at the following times and 
     June 16, 2015 from 6:00 p.m. until 9:00 p.m. at Courtyard 
Sacramento CalExpo, 1782 Tribute Road Sacramento, CA 95815;
     June 18, 2015 from 5:00 p.m. until 8:00 p.m. at Holiday 
Inn Denver East--Stapleton, 3333 East Quebec Street, Denver, CO 80207;
     June 30, 2015 from 5:00 p.m. until 8:00 p.m. at Sheraton 
Westport Chalet, 191 Westport Plaza, St. Louis, MO 63146; and
     July 2, 2015 from 2:00 p.m. until 5:00 p.m. at Holiday Inn 
Arlington at Ballston, 4610 N. Fairfax Dr., Arlington, VA 22203.
    In addition, we will present a public webinar on July 8, 2015. 
Additional information regarding these scoping sessions will be 
available on our Web site at http://www.birdregs.org.

FOR FURTHER INFORMATION CONTACT: Sarah P. Mott at 703-358-1910, or 
[email protected]. Hearing or speech impaired individuals may call 
the Federal Relay Service at 800-877-8337 for TTY assistance.


Background and Need for Action

    In 1916, the United States and Great Britain (on behalf of Canada), 
signed a treaty to protect migratory birds. In 1918, Congress passed 
the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-711) to implement 
the treaty with Canada. Among other things, the MBTA, as enacted, 
prohibited unauthorized killing and selling of birds covered by the 
treaty. The United States later signed bilateral treaties with Mexico, 
Japan, and the Union of Soviet Socialist Republics to protect migratory 
birds. After each treaty was signed, Congress amended the MBTA to cover 
the species addressed in that treaty.
    The MBTA makes it unlawful to take or kill individuals of most bird 
species found in the United States, unless that taking or killing is 
authorized pursuant to regulation 16 U.S.C. 703, 704. ``Take'' is 
defined in part 10 of title 50 of the Code of Federal Regulations (CFR) 
as ``to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or 
attempt to pursue, hunt, shoot, wound, kill, trap, capture, or 
collect'' (50 CFR 10.12). ``Migratory bird'' means any bird protected 
by any of the treaties and currently includes 1,027 bird species in the 
United States (50 CFR 10.13), regardless of whether the particular 
species actually migrates.
    Of the 1,027 currently protected species, approximately 8% are 
either listed (in whole or in part) as threatened or endangered under 
the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.) and 25% are 
designated (in whole or in part) as Birds of Conservation Concern 
(BCC). BCC species are those birds that, without additional 
conservation actions, are likely to become candidates for listing under 
the ESA. According to the State of the Birds reports by the North 
American Bird Conservation Initiative (NABCI), most bird guilds (groups 
of birds that use the same habitat) are experiencing population 
declines, especially those using arid lands, grasslands, and ocean 
environments. Based on number of species within each guild, more 
raptors and waterbirds are on the ESA and BCC lists, respectively, with 
43 percent and 41 percent of the species on these lists.
    Many natural and anthropogenic sources (any activity, action, or 
component of a project, enterprise, or endeavor) cause bird mortality 
or otherwise contribute to declining populations. Bird habitat is lost 
or degraded every year due to urbanization, energy development, 
agriculture, and forestry practices. These rapidly accelerating impacts 
can be mitigated through a variety of approaches, such as voluntary 
incentives, habitat restoration or protection, and best management 
practices. In addition, millions of birds are directly killed by 
interaction with human structures and activities, such as collisions 
with manmade structures, electrocutions, chemicals, and fisheries 
bycatch. The cumulative effects of these sources of mortality are 
contributing to continental-scale population declines for many species 
(State of the Birds, NABCI 2009, 2010, 2011, 2013, 2014).
    Many of these sources of avian mortality are becoming more 
prevalent across the landscape, and their impacts on bird populations 
are exacerbated by the effects of a changing climate. Birds in every 
habitat will likely be affected by anthropogenic sources and climate 
change, so conserving migratory bird populations will require a 
multifaceted, coordinated approach by governments, conservation 
organizations, industry, and the general public. An incidental take 
authorization program alone will not address all of the conservation 
needs of bird populations, but it could provide a framework to reduce 
existing human-caused mortality of birds and help avoid future impacts 
by promoting practical actions or conservation measures that will help 
industries and agencies avoid and minimize their impacts on birds. An 
authorization system created through rulemaking could encourage 
implementation of appropriate conservation measures to avoid or reduce 
avian mortality, such as the technologies and best management practices 
identified in current Service guidance for certain industry sectors, 
and could create a regulatory mechanism to obtain meaningful 
compensatory mitigation for bird mortality that cannot be avoided or

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minimized through best practices or technologies. Compensatory 
mitigation for incidental take, especially on a watershed or landscape 
basis, can provide conservation benefits through funding of habitat 
replacement, restoration, or, in certain circumstances, acquisition.
    The Service has longstanding regulations found at 50 CFR part 21 
that authorize the issuance of permits to take migratory birds. A 
number of migratory bird regulations authorize purposeful take for a 
variety of purposes, including bird banding and marking, scientific 
collection, bird rehabilitation, raptor propagation, and falconry. 
Consistent with the Service's longstanding position that the MBTA 
applies to take that occurs incidental to, and which is not the purpose 
of, an otherwise lawful activity, we also have authorized incidental 
take by the Armed Forces during military-readiness activities (50 CFR 
21.15) and in certain situations through special use permits described 
in 50 CFR 21.27.
    We are now considering establishing more general authority to 
permit incidental take through general authorizations, individual 
permits, or interagency memoranda of understanding. This regulatory 
process would provide greater certainty for entities that have taken 
efforts to reduce incidental take and significantly benefit bird 
conservation by promoting implementation of appropriate conservation 
measures to avoid or reduce avian mortality. The process would also 
create a regulatory mechanism to obtain meaningful compensatory 
mitigation for bird mortality that cannot be avoided or minimized 
through best practices, risk management processes, or technologies. We 
are considering approaches that will minimize the administrative burden 
of compliance with this regulatory process for industry, other Federal 
agencies, and the Service, and will also consider continuation of our 
current efforts to work with interested industry sectors to develop 
voluntary guidance for avoiding or minimizing incidental take of 
migratory birds. These approaches will not affect 50 CFR 21.15, which 
was issued to allow the Armed Forces to incidentally take migratory 
birds during military-readiness activities.
    We note that should we develop a permit system authorizing and 
limiting incidental take, we would not expect every person or business 
that may incidentally take migratory birds to obtain a permit, nor 
would we intend to expand our judicious use of our enforcement 
authority under the MBTA. The Service focuses its enforcement efforts 
under the MBTA on industries or activities that chronically kill birds 
and has historically pursued criminal prosecution under the Act only 
after notifying an industry of its concerns regarding avian mortality, 
working with the industry to find solutions, and proactively educating 
industry about ways to avoid or minimize take of migratory birds. 
Similarly, our permit program, if implemented, will focus on industries 
and activities that involve significant avian mortality and for which 
reasonable and effective measures to avoid or minimize take exist.

Need for Agency Action

    We seek to provide legal clarity to Federal and State agencies, 
industry, and the public regarding compliance with the MBTA. At the 
same time, we have a legal responsibility under the MBTA and the 
treaties the Act implements to promote the conservation of migratory 
bird populations. We are considering actions, therefore, that can 
provide legal authorization for incidental take of migratory birds 
where authorization is appropriate, will promote adoption of measures 
to avoid or minimize incidental take, and will provide for appropriate 
mitigation, including compensation, for that take.

NEPA Analysis of Potential Incidental Take Authorization Options

    The National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347) 
requires Federal agencies to undertake an assessment of 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 (CEQ), which issued regulations implementing the 
procedural provisions of NEPA (40 CFR parts 1500-1508). Among other 
considerations, CEQ regulations at 40 CFR 1508.28 recommend the use of 
tiering from a broader environmental impact statement (such as a 
national program or policy statement). Subsequent narrower statements 
or environmental analyses (such as regional or site-specific 
statements) would incorporate by reference the general discussions of 
the previous broad EIS and concentrate solely on the issues specific to 
the narrower statement.
    Consistent with this guidance, we intend to complete a programmatic 
environmental impact statement (PEIS) to consider a number of 
approaches to regulating incidental take of migratory birds. The PEIS 
will address the potential environmental impacts of a range of 
reasonable alternatives for regulating and authorizing incidental take; 
the effectiveness of best practices or measures to mitigate take of 
migratory birds under the MBTA and adverse impacts to migratory bird 
resources; the potential for environmental impacts to non-bird 
resources, such as cultural resources, from measures to protect birds; 
the effects on migratory bird populations of sources of mortality other 
than incidental take; and the effects on migratory bird populations of 
impacts to migratory bird habitat, including, but not limited to, 
climate change. We will address our compliance with other applicable 
authorities in our proposed NEPA review.

Tribal Responsibilities

    The Service has unique responsibilities to tribes including 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); Native American 
Graves Protection and Repatriation Act (25 U.S.C. 3001); 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 ESA (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 this notice of intent. We will also ensure that those tribes 
and Native 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.

Possible Actions

    We are considering various approaches for authorizing incidental 
take of migratory birds. Each of these regulatory approaches would 
require us to promulgate new regulations under the MBTA, in compliance 
with applicable statutory and Executive Branch requirements for 

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We will also consider, as an alternative to these regulatory 
approaches, a continuation of our practice of working with interested 
industry sectors to develop voluntary guidance that identifies best 
management practices or technologies that can effectively avoid or 
minimize avian mortality from hazards in those sectors. These 
approaches may be considered separately or in any combination. 
Therefore, the PEIS will consider the effects from each approach, and 
the effects from combined approaches.

General Conditional Authorization for Incidental Take Associated With 
Particular Industry Sectors

    One possible approach would be to establish a general conditional 
authorization for incidental take by certain hazards to birds 
associated with particular industry sectors, provided that those 
industry sectors adhere to appropriate standards for protection and 
mitigation of incidental take of migratory birds. The standards would 
include conservation measures or technologies that have been developed 
to address practices or structures that kill or injure birds. We are 
considering developing authorizations under this approach for a number 
of types of hazards to birds that are associated with particular 
industry sectors, described below. We selected these hazards and 
sectors because we know that they consistently take birds and we have 
substantial knowledge about measures these industries can take to 
prevent or reduce incidental bird deaths. We have a history of working 
with these industry sectors to address associated hazards to birds by 
issuing guidance and reviewing projects at the field level or by 
engaging in collaborative efforts to establish best management 
practices and standards.
     Oil, gas, and wastewater disposal pits can entrap birds 
that are attracted to a perceived source of water. Birds that land on 
or fall into the pit become covered with oil and may ultimately die 
from drowning, exhaustion, exposure, or effects of ingested oil. Closed 
containment systems or properly maintained netting prevents birds from 
entering these sites.
     Methane or other gas burner pipes at oil production sites 
and other locations provide a hazard to birds from burning, entrapment 
in pipes or vents, or direct mortality from flame flare. Removing 
perches, installing perch deterrents, and covering pipes and other 
small openings can minimize this take.
     Communication towers can have a significant impact on 
birds, especially birds migrating at night. Using recommended tower-
siting practices and design features such as appropriate lighting, 
shorter tower heights, and eliminating or reducing the use of guy wires 
can minimize bird take caused by collisions with these structures.
     Electric transmission and distribution lines impact a 
variety of birds through electrocution and collision. To reduce 
electrocutions, poles can be made avian-safe through pole and equipment 
design or through post-construction retrofitting measures. Collisions 
are best minimized through appropriate siting considerations.
    We may seek to develop additional general authorizations in this 
rulemaking for hazards to birds associated with other industry sectors. 
We are considering, for example, whether a general conditional 
authorization can be developed for hazards to birds related to wind 
energy generation, building on guidance we have developed jointly with 
that industry to address avian mortality. We seek input from the public 
and interested parties regarding the issues, environmental impacts, and 
mitigation techniques we should assess if we try to develop a general 
authorization for wind energy generation, and also on whether there are 
additional industry sectors for which general authorization of 
incidental take may be appropriate.

Individual Permits

    A second possible approach would be to establish legal authority 
for issuing individual incidental take permits for projects or 
activities not covered under the described general, conditional 
authorization that present complexities or siting considerations that 
inherently require project-specific considerations, or for which there 
is limited information regarding adverse effects. We are considering 
ways to minimize the administrative burdens of obtaining individual 
incidental take permits for both applicants and the Service, such as 
combining environmental reviews for those permits with reviews being 
conducted for other Federal permits or authorizations. Our intention 
would be only to establish the authority and standards for issuance of 
individual permits in this rulemaking; we do not intend to issue any 
actual individual permits as part of this action. FWS will conduct 
site-specific NEPA reviews in connection with the future issuance of 
any such permit.

Memoranda of Understanding With Federal Agencies

    A third possible approach would be to establish a procedure for 
authorizing incidental take by Federal agencies that commit in a 
memorandum of understanding (MOU) with us to consider impacts to 
migratory birds in their actions and to mitigate that take 
appropriately. We have negotiated MOUs with a number of Federal 
agencies under Executive Order 13186 (66 FR 3853, January 17, 2001), 
but we have not previously sought to authorize incidental take through 
those memoranda. Expanding existing MOUs and negotiating MOUs with 
additional Federal agencies could provide an efficient programmatic 
approach to regulating and authorizing incidental take caused by 
Federal agency programs and activities. We may also consider whether 
MOUs with Federal agencies might provide appropriate vehicles for 
authorizing take by third parties regulated by those agencies, even 
though the agencies themselves are not subject to the prohibitions of 
the MBTA when acting in their regulatory capacities.
    The regulation we envision promulgating would not immediately 
authorize incidental take via existing MOUs, but would allow us to 
develop MOUs with interested agencies to authorize that take in the 
future. We will conduct appropriate NEPA analysis in connection with 
the development of any such memoranda if we pursue this option.

Development of Voluntary Guidance for Industry Sectors

    We will also evaluate an approach that builds on our experience 
working with particular industry sectors to develop voluntary guidance 
that identifies best management practices or technologies that can be 
applied to avoid or minimize avian mortality resulting from specific 
hazards in those sectors. Under this approach, we would continue to 
work closely with interested industry sectors to assess the extent that 
their operations and facilities may pose hazards to migratory birds and 
to evaluate operational approaches or technological measures that can 
avoid or reduce the risk to migratory birds associated with those 
hazards. We would not provide legal authorization for incidental take 
of migratory birds by companies or individuals that comply with any 
such guidance, but would, as a matter of law-enforcement discretion, 
consider the extent to which a company or individual had complied with 
that guidance as a substantial factor in assessing any potential 
enforcement action for violation of the Act.

Public Comments

    We request information from other interested government agencies, 
Native American tribes, Native Hawaiians, the

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scientific community, industry, nongovernmental organizations, and 
other interested parties. We solicit input on the following:
    (1) The approaches we are considering for authorizing incidental 
    (2) The specific types of hazards to birds associated with 
particular industry sectors that could be covered under general 
    (3) Potential approaches to mitigate and compensate for the take of 
migratory birds;
    (4) Other approaches, or combinations of approaches, we should 
consider with respect to the regulation and authorization of incidental 
    (5) Specific requirements for NEPA analyses related to these 
    (6) Whether the actions we consider should distinguish between 
existing and new industry facilities and activities;
    (7) Considerations for evaluating the significance of impacts to 
migratory birds and to other affected resources, such as cultural 
    (8) Information regarding natural resources that may be affected by 
the proposal;
    (9) Considerations for evaluating the interactions between affected 
natural resources;
    (10) The benefits provided by current Federal programs to conserve 
migratory birds and the additional benefits that would be provided by a 
program to authorize incidental take;
    (11) The potential costs to comply with the actions under 
consideration, including those borne by the Federal government and 
private sectors;
    (12) The baseline for quantifying the costs and benefits of the 
    (13) Bird species having religious or cultural significance for 
tribes, bird species having religious or cultural significance for the 
general public, and impacts to cultural values from the actions being 
    (14) Considerations for evaluating climate change effects to 
migratory bird resources and to other affected resources, such as 
cultural resources; and
    (15) How to integrate existing guidance and plans, such as Avian 
Protection Plans, into the proposed regulatory framework.
    You may submit your comments and materials by one of the methods 
described above under ADDRESSES at the beginning of this notice of 

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 


    The authorities for this action are the MBTA, NEPA, and Executive 
Order 13186, Responsibilities of Federal Agencies to Protect Migratory 

    Dated: May 20, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-12666 Filed 5-22-15; 8:45 am]