[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